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Review of the consequences for Norway of ratifying the Treaty on the Prohibition of Nuclear Weapons

On 8 February 2018, the Storting (Norwegian parliament) requested the Government to review the consequences for Norway of ratifying the recently adopted Treaty on the Prohibition of Nuclear Weapons.

In addition to an analysis of the substance of the treaty and the consequences for Norway of ratifying it, the Storting specifically asked for an assessment of the Treaty in relation to Norway’s current defence plans and other relevant conventions including the Non-Proliferation Treaty, and in relation to Norway’s legal and political obligations as a Nato member. Further, the Storting asked for an overall assessment of what ratification of the treaty would mean for Norway. The review was also to indicate how Norway could support the objectives of the Treaty. The request specified that relevant experts, researchers and civil society organisations should be consulted and asked for their views, and that similar reviews currently being carried out in other countries, including Sweden and Italy, should be considered to see whether their conclusions are also applicable to Norway. The Storting asked for the review to be completed in the course of 2018.[1]

Contents

Background

This section gives a presentation of important developments in the disarmament field leading up to the adoption of the Treaty on the Prohibition of Nuclear Weapons, and Norway’s involvement in these efforts.

The 2010 Review Conference of the parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) adopted an ambitious action plan for nuclear disarmament and non-proliferation. The action plan also recognised that any use of nuclear weapons, whether intentional or not, would have catastrophic humanitarian consequences. The Review Conference took place during a period when there was strong political will to reduce the nuclear threat. This was highlighted in President Obama’s speech in Prague in 2009, in which he called for action and renewed disarmament efforts. The US and Russia adopted the New Start Treaty, and President Obama established a series of Nuclear Security Summits, which were held in the period 2010–2016. Norway played an active part in these summits. They raised awareness of the issue of nuclear security, especially the need to secure nuclear and radiological material, and resulted in concrete action. The summits were organised in response to concerns about the risk that nuclear and radiological material outside regulatory control might be acquired by terrorists. It is estimated that at the height of the Cold War, there were around 70 000 nuclear weapons in the world, but that this has now been reduced to about 14 500.[2]

Norway took the initiative to follow up the 2010 NPT action plan by looking at the humanitarian consequences of nuclear weapons.[3] The Oslo Conference on the Humanitarian Impact of Nuclear Weapons was held in March 2013. Its purpose was to promote fact-based understanding of the humanitarian consequences of a nuclear detonation and to facilitate discussions of the issue with relevant stakeholders from countries, the UN and other international organisations, and civil society. The main conclusions of the conference were as follows: 1) No state or international organisation would be able to address the immediate humanitarian disaster caused by a nuclear weapon detonation. It would not be possible to provide sufficient assistance to those affected, and it would be difficult to establish the necessary capacity to do so. 2) Historical experience of the use and testing of nuclear weapons has demonstrated their devastating immediate and long-term destructive capacity, irrespective of political circumstances. 3) The impacts of a nuclear weapon detonation, irrespective of cause, would not stop at national borders and would have significant effects on countries and people, both regionally and globally.

The Oslo Conference was followed by two more conferences on the humanitarian impact of nuclear weapons, in Mexico and Austria, both held in 2014. These two conferences were held at a time when relations between Russia and Western countries were becoming markedly cooler after Russia’s illegal annexation of Crimea. Russia rejected US proposals for new disarmament negotiations in addition to New Start. Growing Russian opposition to the US missile defence system, and the crises in Ukraine and Syria, added to the tensions and created a security policy climate that was not conducive to progress on disarmament.

As tensions grew between Russia and Western countries, some countries were also becoming increasingly frustrated about the lack of progress on nuclear disarmament. In addition to failure to achieve further cuts in nuclear arsenals, there was little prospect of the entry into force of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), and measures to decrease the operational readiness of deployed nuclear weapons did not materialise. It was also proving difficult to make progress in the negotiations on a Fissile Material Cut-off Treaty (FMCT). There were concerns that nuclear weapons would once again be given a more prominent position in various security policy doctrines, particularly as a result of Russia’s focus on its nuclear capabilities. The growing frustration and impatience was exacerbated by the failure of the 2015 NPT Review Conference to reach consensus on the substantive part of the Final Document. This failure was the result of disagreement on the issue of a nuclear-weapon-free zone in the Middle East. In response to this situation, some countries and civil society organisations Started to look for new ways of making progress on disarmament.

The conferences in Mexico and Austria in 2014 resulted in the formulation of a call for the abolition of nuclear weapons. This took the form of a national pledge, the ‘Austrian Pledge’, presented at the end of the conference in Vienna. It was later renamed the ‘Humanitarian Pledge’. A key element of the Austrian Pledge was the claim that there is a ‘legal gap’ concerning the prohibition of nuclear weapons. Austria, with the support of Mexico, South Africa and Ireland, proposed a UN General Assembly resolution on the issue. In 2015, this was adopted as Resolution 70/33, entitled ‘Taking forward multilateral nuclear disarmament negotiations’, and including a decision to convene an open-ended working group to address the matter. No Nato member state supported the resolution, and Norway abstained.

The nuclear-weapon states opposed the adoption of the resolution and announced that they would not take part in the working group. However, Norway and several Allies chose to play an active part in the working group. Norway’s involvement was also in line with a decision unanimously adopted by the Storting on 26 April 2016.[4]

In this decision, the Storting requested the Government to work actively towards a world free of nuclear weapons and to promote the implementation of the Non-Proliferation Treaty (NPT), to be a driving force for non-proliferation and disarmament with a view to achieving the balanced, mutual, irreversible and verifiable elimination of nuclear weapons, and on this basis to take a long-term approach to efforts to secure a legally binding framework to achieve this goal.

In line with the Storting’s request, the Starting point for Norway’s participation in the open-ended working group was that it was essential that a legally binding framework should be the result of a disarmament process that also included the nuclear-weapon states. Norway actively sought to reach a consensus in the working group, but a majority of the group chose to recommend that the UN General Assembly should convene a conference at an early date to negotiate a prohibition on nuclear weapons. Norway and other Nato member states did not support this, and therefore did not take part in the negotiations in spring 2017. The only Nato member that participated in the negotiations was the Netherlands, which voted against the final text of the treaty.

The nuclear-weapon states reiterated and further emphasised their views on the new treaty during the UN General Assembly in autumn 2017. Their main argument was that further disarmament can only be achieved if there is sufficient trust between the states that possess such weapons.

Norway is actively seeking to include the nuclear-weapon states in initiatives that can result in real disarmament in the long term. An efficient verification system is the key to ensuring compliance with existing disarmament and non-proliferation agreements and to building the confidence necessary for new reductions in nuclear arsenals. Verification is now the area of disarmament where most work is being done internationally. To achieve a world free of nuclear weapons, it is vital that non-nuclear-weapon states can take part in verifying compliance with disarmament obligations. Norway has been working on verification of disarmament since 2007. What Started as bilateral cooperation with the UK (the UK-Norway Initiative, or UKNI) has since been expanded into the Quad Nuclear Verification Partnership (Quad), which also involves Sweden and the US. In autumn 2017, these four countries carried out an innovative disarmament verification exercise at a former UK nuclear weapons base. The International Partnership for Nuclear Disarmament Verification (IPNDV), which now involves almost 30 countries, has drawn inspiration from the Norwegian-UK initiative. The first phase of the IPNDV involved all five of the nuclear-weapon states, and the plenary conference in autumn 2015 was held in Oslo.

In 2016, Norway intensified its longstanding work on nuclear disarmament verification and put forward a resolution on this matter to the UN General Assembly. The resolution was adopted with the support of 177[5] member states. No countries voted against the resolution, while seven[6] countries abstained. In accordance with the resolution, the UN has appointed a group of governmental experts chaired by Norway and with participants from 25 countries. The group is to report to the UN General Assembly in autumn 2019.

Nuclear disarmament and non-proliferation cannot be considered in isolation from nuclear security efforts. Norway is therefore also at the forefront of efforts to reduce stocks of highly enriched uranium (HEU) and to reduce and eventually eliminate all civilian use of HEU, in order to reduce the risk of it falling into the wrong hands. In cooperation with the International Atomic Energy Agency (IAEA), Norway organised an international symposium on this important topic earlier this year.

The substance of the Treaty on the Prohibition of Nuclear Weapons

The Treaty on the Prohibition of Nuclear Weapons[7] was adopted in New York on 7 July 2017. It will enter into force 90 days after 50 states have ratified it. As of 7 August 2018, 60 states had signed the treaty and 15 had ratified it.

The preamble sets out the fundamental considerations underlying the Treaty, particularly the catastrophic humanitarian consequences that would result from any use of nuclear weapons. In addition, it recalls some of the fundamental rules and principles of international law that are not referred to further in this specific treaty, but that in any case apply to all types of weapons and methods of warfare. The eighth paragraph of the preamble reaffirms that all States must at all times comply with applicable international law, including international humanitarian law and international human rights law. The ninth paragraph elaborates on the relevant rules of humanitarian law, including the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment. The tenth paragraph of the preamble then affirms that any use of nuclear weapons would be contrary to the rules of international law, including the above-mentioned rules of international humanitarian law. Further, the preamble recalls that the UN Charter requires states to refrain from the threat or use of force against the territorial integrity or political independence of any State, and mentions a number of other provisions of treaties dealing with nuclear weapons, including the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the Comprehensive Nuclear-Test-Ban Treaty (CTBT).

The key provision of the treaty is Article 1 (a), under which each State Party undertakes never under any circumstances to develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices. Article 1 also contains prohibitions on transferring or receiving such weapons or control of such weapons directly or indirectly, and on the use of or threats to use nuclear weapons (Article 1 (b), (c) and (d)). In addition, assisting, encouraging or inducing anyone to use such weapons or engage in activities that are incompatible with the Treaty, and seeking or receiving any assistance from others to engage in activities that are incompatible with the Treaty, are prohibited under Article 1 (e) and (f). States also undertake not to allow any stationing, installation or deployment of any nuclear weapons in their territory or in any places under their jurisdiction or control.

The remaining provisions of the Treaty are intended to ensure its implementation.

Article 2 obliges any State that has or has had nuclear weapons to submit a declaration on this to the UN Secretary-General no later than 30 days after the entry into force of the Treaty for that State Party. Articles 3 and 4 deal with various safeguards.

Article 3.1. obliges non-nuclear-weapon states, as a minimum, to maintain their safeguards agreements with the IAEA on peaceful nuclear activities. Any State that does not have and has not had nuclear weapons, and that does not have a safeguards agreement with the IAEA, is obliged under Article 3.2. to conclude such an agreement within 18 months of the entry into force of the Treaty for that State. States must then maintain such obligations and any other relevant instruments they may adopt at a later time.

Article 4 deals with measures for the total and irreversible elimination of existing nuclear weapons. The deadline for their destruction is to be determined by the first meeting of the States Parties to the Treaty, and they are to be destroyed in accordance with a legally binding, time-bound plan for the verified and irreversible elimination of each State Party’s nuclear-weapon programme, including nuclear-weapons-related facilities. Each State’s plan is to be submitted to the States Parties or to a competent international authority designated by the States Parties. The plan is then to be negotiated with the competent international authority, which will submit it to the subsequent meeting of the States Parties for approval. At the latest when implementation of the plan is completed, the State Party must Start the negotiation of a safeguards agreement with the IAEA, which must enter into force no later than 18 months after the date when negotiations Started. Once the safeguards agreement is in force, the State Party must submit a final declaration to the UN Secretary-General stating that it has fulfilled its obligations under Article 4. A State Party that has nuclear weapons in its territory that are owned, possessed or controlled by another State must ensure their removal as soon as possible, but no later than a deadline to be determined by the first meeting of the States Parties. Once the weapons have been removed, the State must submit a declaration to the UN Secretary-General stating that it has fulfilled its obligations. All States Parties to which Article 4 applies are required to report regularly to meetings of the States Parties and review conferences on progress towards the elimination of nuclear weapons.

Article 4.6. deals with verification. The States Parties are required to designate a competent international authority or authorities to verify the irreversible elimination of nuclear-weapons programmes, including nuclear-weapons-related facilities. If no authority has been designated prior to the entry into force of the Treaty for a State Party that has or has had nuclear weapons, the UN Secretary-General must convene an extraordinary meeting of States Parties to take any decisions that may be required.

Article 5 deals with national implementation of the Treaty. One of the measures a State Party must adopt to fulfil its obligations is to impose penal sanctions for activities that are prohibited under the Treaty and that are undertaken by persons or on territory under its jurisdiction or control.

Article 6 requires States Parties to ensure that individuals under their jurisdiction who are affected by the use or testing of nuclear weapons receive the assistance they need, and to take necessary and appropriate measures towards the environmental remediation of areas contaminated by such testing. Article 7 deals with international cooperation between States Parties and the provision of assistance to ensure implementation of the provisions of the Treaty. A State Party that has used or tested nuclear weapons is responsible for providing assistance to affected States Parties, as set out in Article 7.6.

Article 8 of the Treaty contains provisions on the organisation of meetings of States Parties, and Article 9 sets out how the costs of meetings of States Parties, verification and destruction are to be shared. States Parties may agree on amendments to the Treaty in line with Article 10.

Article 11 describes the settlement of disputes, which is to be organised in accordance with Article 33 of the UN Charter. Article 33.2 of the UN Charter states that when it deems it necessary, the Security Council shall call on the parties to settle a dispute by peaceful means such as those listed in Article 33.1 (negotiation, enquiry, mediation, etc.).

The Treaty does not provide for States Parties to make reservations (Article 16), and it is of unlimited duration. However, a State Party has the right to withdraw from the Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardised the supreme interests of its country. Notice of withdrawal will only take effect 12 months after the Depositary has received the notification. There is an exception if the withdrawing State Party is a party to an armed conflict on the expiry of the 12-month period. In this case, the State Party will continue to be bound by the Treaty until it is no longer party to an armed conflict.

Article 18 of the Treaty deals with its relationship with other agreements, and states that its implementation shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty. This must be considered in conjunction with the references in the preamble to agreements such as the NPT and the CTBT, highlighting the role of the NPT as a core element of the nuclear disarmament and non-proliferation regime, and the vital importance of these agreements in promoting international peace and security.

Assessment of the Treaty in relation to Norway’s obligations under the Treaty on the Non-Proliferation of Nuclear Weapons

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was adopted on 1 July 1968. Norway ratified the treaty on 5 February 1969, and it entered into force on 5 March 1970. A total of 191 countries, including the nuclear-weapon states, have now joined the treaty.

The NPT distinguishes between nuclear-weapon and non-nuclear-weapon States Parties. Five States Parties – China, France, Russia, the UK and the US – are entitled to have nuclear weapons, but have undertaken to pursue negotiations on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament (Article VI). Non-nuclear-weapon States Parties undertake not to receive, manufacture or otherwise acquire such weapons (Article II).

The NPT rests on three main pillars: nuclear non-proliferation, the peaceful use of nuclear energy and disarmament.

Nuclear non-proliferation

The NPT does not prohibit nuclear weapons, but Articles I and II set out the obligations that States Parties undertake in order to prevent nuclear proliferation. These include an undertaking not to transfer nuclear weapons from a nuclear-weapon State to any recipient whatsoever, and, for non-nuclear-weapon States, not to receive transfers of nuclear weapons directly or indirectly, nor to manufacture or otherwise acquire nuclear weapons.

Under Article 1 (a) of the Treaty on the Prohibition of Nuclear Weapons, States Parties also undertake not to produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons. Furthermore, Article 1 (b) and (c) of the Treaty on the Prohibition of Nuclear Weapons contain provisions similar to those in the NPT, in which States Parties undertake not to transfer nuclear weapons or receive transfers of or control over such weapons.

States Parties also undertake not to test nuclear weapons under Article 1 (a) of the Treaty on the Prohibition of Nuclear Weapons. There is no corresponding provision in the NPT. However, such tests are also prohibited under the CTBT, which Norway has already ratified.

Under the Treaty on the Prohibition of Nuclear Weapons, States Parties also undertake never to assist, encourage or induce or seek or receive assistance to engage in any activity prohibited under the Treaty (Article 1 (e) and (f)). Article II of the NPT also deals with assistance, but is worded in such a way that the provision is less comprehensive. According to Article II, States Parties undertake ‘not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices’. Thus, ratifying the Treaty on the Prohibition of Nuclear Weapons would mean that Norway would take on a more comprehensive legal obligation in this respect than that which follows from Article II of the NPT.

States that accede to the Treaty on the Prohibition of Nuclear Weapons also undertake under Article 1 (g) not to allow any stationing, installation or deployment of nuclear weapons in their territory or at any place under their jurisdiction or control. There is no corresponding provision in the NPT. Norway’s policy has for many years been that nuclear weapons from other countries are not to be stationed on Norwegian territory in peacetime, but this is not currently based on an agreement under international law. If Norway ratified the Treaty on the Prohibition of Nuclear Weapons, what has until now been a self-imposed political restriction in peacetime would under Article 1 (g) become an obligation for Norway under international law both in peacetime and in time of war.

This discussion shows that certain provisions of the Treaty on the Prohibition of Nuclear Weapons impose more comprehensive or new obligations in the field of non-proliferation. However, these are not incompatible with the NPT.

Peaceful use of nuclear energy

The NPT distinguishes between nuclear weapons and the peaceful use of nuclear energy. Article IV of the NPT deals with the right of Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes. The Treaty on the Prohibition of Nuclear Weapons does not have a corresponding article because it has a narrower scope, but its preamble does confirm the right to make peaceful use of nuclear energy.

Under Article III.1 of the NPT, each non-nuclear-weapon State Party is obliged to enter into a safeguards agreement with the IAEA for the purpose of verifying the fulfilment of its obligations under the Treaty, with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Nuclear-weapon States Parties are not obliged to do this, but most of them have concluded voluntary safeguards agreements for their civilian nuclear activities.

Article 3 of the Treaty on the Prohibition of Nuclear Weapons requires States Parties that do not have nuclear weapons, or that have not had nuclear weapons after 7 July 2017, to maintain their IAEA safeguards agreements (Article 3.1.) or to conclude a comprehensive safeguards agreement (INFCIRC/153 (Corrected)) with the IAEA (Article 3.2.). Thus, the Treaty on the Prohibition of Nuclear Weapons does not allow States Parties the option of not concluding a safeguards agreement with the IAEA. Norway concluded its first safeguards agreement with the IAEA in 1972.

A ‘comprehensive safeguards agreement’ is an agreement that applies safeguards on all nuclear material in all nuclear activities in a State. A safeguards agreement between a State and the IAEA that is concluded on the basis of INFCIRC/153 and in line with Article III.1 of the NPT is considered to be a ‘comprehensive agreement’.[8]

Thus, a safeguards agreement such as is referred to in Article 3 of the Treaty on the Prohibition of Nuclear Weapons must be in accordance with the IAEA’s established guidelines for agreements between the Agency and non-nuclear-weapon states that are States Parties to the NPT. All in all, it appears that the safeguards system under the Treaty on the Prohibition of Nuclear Weapons is in line with and reinforces the obligations set out in Article III of the NPT. However, the safeguards systems described in the NPT are from 1968 and do not reflect the requirements that are considered to be necessary today.

Many international agreements prescribe stricter safeguards regimes than those that follow from the Treaty on the Prohibition of Nuclear Weapons and the NPT. Several States,[9] including Norway, are also parties to the IAEA Additional Protocol.[10] This lays down stricter safeguards rules than the traditional system under the NPT, and is considered to be the global safeguards standard today. The Treaty on the Prohibition of Nuclear Weapons does not specifically require States to conclude an Additional Protocol with the IAEA, but does not prevent this. According to Article 3 of the Treaty, non-nuclear-weapon states that are already parties to the Additional Protocol are required to maintain this status. Article 18 also states that the Treaty shall not prejudice obligations under existing international agreements provided that they are consistent with the Treaty on the Prohibition of Nuclear Weapons.

Disarmament

Article VI of the NPT deals with disarmament, and the wording makes it clear that it applies to all states, both nuclear-weapon states and non-nuclear-weapon states.

According to Article VI, parties undertake to ‘pursue negotiations in good faith’ with a view to achieving nuclear disarmament. There is no further clarification of what is meant by ‘pursue negotiations in good faith’. There is no explicit requirement for such negotiations to take place within the framework of the NPT.

States undertake three obligations under Article VI of the NPT: to pursue negotiations on effective measures relating to cessation of the nuclear arms race at an early date; to pursue negotiations on effective measures relating to nuclear disarmament; and to pursue negotiations on a treaty on general and complete disarmament under strict and effective international control. Article VI does not contain any explicit information on the order of these three obligations.

There are few sources of law concerning the interpretation of Article VI of the NPT. The nuclear-weapon states and non-nuclear-weapon states that are parties to the NPT have had differing opinions on what is required to meet the obligations set out in Article VI.

In 1996, the International Court of Justice published an advisory opinion on the use of nuclear weapons which emphasised the importance of Article VI of the NPT and the obligation of all States Parties to take part in real negotiations to achieve the goal of complete nuclear disarmament: ‘the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.’

The Treaty on the Prohibition of Nuclear Weapons is not a treaty on general and complete disarmament containing a detailed plan for reduction and elimination of nuclear weapons in nuclear-weapon states. On this basis, it has been suggested that the Treaty might be contrary to the obligations set out in Article VI of the NPT, because it would not be an effective measure for general and complete nuclear disarmament. It has been asserted that the Treaty on the Prohibition of Nuclear Weapons could hinder efforts to conclude a disarmament treaty in line with Article VI of the NPT and thus be incompatible with the ‘good faith obligation’ that is incumbent on the States parties to the NPT.

The conclusion is that there are no grounds for asserting that the Treaty on the Prohibition of Nuclear Weapons is contrary to the provisions of the NPT on disarmament under international law. However, opinions are divided as to whether the Treaty is an appropriate instrument for achieving the goal of a world without nuclear weapons.

Assessment of the Treaty in relation to Norway’s obligations as a Nato member

Norway’s membership of Nato entails both legal obligations (under the North Atlantic Treaty) and political obligations, such as those set out in the Nato Strategic Concept and in Nato summit declarations. Nato was established on the basis of the North Atlantic Treaty, which defines the area of application, and sets out fundamental values, principles and obligations, but makes no mention of nuclear weapons or other military capabilities.

Thus, there is no conflict as regards legal obligations between the Treaty on the Prohibition of Nuclear Weapons and the North Atlantic Treaty. However, Article 5 of the North Atlantic Treaty also sets out the principle of collective defence, which establishes that the Parties will take such action as deemed necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Nuclear weapons are a core component of the deterrence policy that underpins this principle.

It is clear that if Norway ratified the Treaty on the Prohibition of Nuclear Weapons, it would acquire new obligations that would be incompatible with its political obligations under Nato. Nato’s 2010 Strategic Concept[11] , the 2012 Deterrence and Defence Posture Review (DDPR) and the Nato summit communiqués provide the framework for the political obligations Norway has as a Nato member. These documents have been unanimously adopted at Nato summits by Nato heads of state and government.

These documents establish that Nato supports the goal of creating a world without nuclear weapons, but make it clear that Nato will remain a nuclear alliance as long as nuclear weapons exist. Disarmament must be balanced. A Nato member state cannot ratify an agreement that prohibits one of the core components of Nato’s deterrence policy without fundamentally challenging the unity of the Alliance. This would not be compatible with the agreed policy and obligations, as set out in the Strategic Concept and the DDPR. These documents will apply until Nato unanimously adopts any changes to them. Nuclear weapons are an important element of Nato’s deterrence policy. In the DDPR, nuclear weapons are referred to as one of three core components of Nato’s overall capabilities for deterrence and defence alongside conventional and missile defence forces.

Article 1 of the Treaty on the Prohibition of Nuclear Weapons, which sets out the extent of the prohibition, makes it impossible for States Parties to the Treaty to take part in any element of Nato’s nuclear deterrence and defence. If Norway ratified the Treaty, it would for example be impossible for Norway to participate in the Nuclear Planning Group (NPG) (and sub-groups such as the NPG High Level Group and the NPG Staff Group), thus reducing Norway’s influence on Nato’s nuclear policy. Norway is one of the Nato member states that has worked over time to achieve a good balance between nuclear deterrence and nuclear disarmament. Placing itself outside the Nato bodies where issues relating to nuclear weapons are discussed would not be an effective way for Norway to promote disarmament.

Nato’s nuclear weapons policy was established before the Non-Proliferation Treaty (NPT) was negotiated and entered into force. Its provisions, including Articles I and II, date from a time when the US and what was then the Soviet Union had nuclear weapons deployed on the territory of their European allies, and operational concepts for these weapons had also been established. The prevailing understanding at the time was that the NPT did not preclude this, and today all Nato members are States Parties to the NPT. All Nato Allies have emphasised their strong commitment to all aspects of the NPT, on the basis that Nato’s nuclear weapons policy has always been in line with the NPT. Norway has consistently adhered to this view. The Treaty on the Prohibition of Nuclear Weapons, on the other hand, would prohibit the nuclear weapons currently deployed by the US in Europe on the territory of any country that ratified it. This would create problems for a number of Allied countries, not just the three nuclear-weapon states.

Article 1 of the Treaty on the Prohibition of Nuclear Weapons also prohibits nuclear deterrence as such (Article 1, (d), (e), (f), (g)). This is in direct conflict with Nato’s deterrence posture, as expressed, for example, in Nato summit communiqués. It would therefore be difficult for a country that has ratified the Treaty to endorse the summit communiqués as they are worded today.

In the past, there has been open disagreement in Nato about its nuclear deterrence policy. This was particularly apparent in 1979 when Nato made its dual-track decision. The countries that had reservations about the decision expressed this through dissenting footnotes in various subsequent Nato declarations. This footnote policy significantly weakened the influence of the countries concerned on Nato policy, and undermined unity within the Alliance.

In a statement issued on 20 September 2017, the North Atlantic Council made it clear that the Alliance does not support the Treaty on the Prohibition of Nuclear Weapons on the grounds that it ‘is at odds with the existing non-proliferation and disarmament architecture’ and it ‘disregards the realities of the increasingly challenging international security environment’. The statement concludes with the words: ‘As Allies committed to advancing security through deterrence, defence, disarmament, non-proliferation and arms control, we, the Allied nations, cannot support this treaty’.[12]

Nato’s nuclear deterrence is intended to prevent other nuclear-weapon states from being tempted to use, or threaten to use, nuclear weapons. If Nato were to relinquish its nuclear deterrence unilaterally, this would not enhance our security, but would instead create strategic instability. It would be irresponsible of Norway to be the only Nato member to ratify the Treaty on the Prohibition of Nuclear Weapons, particularly at a time when the security challenges in our neighbouring areas are greater than they have been for many years.

Assessment of the Treaty on the Prohibition of Nuclear Weapons in relation to Norwegian defence plans

The Norwegian Armed Forces’ most important function is to maintain credible deterrence in order to prevent military conflicts from arising.

Nato’s principle of collective defence is fundamental to Norway’s defence. This means that plans for the defence of Norwegian territory are part of a joint Allied operational framework. Even though the circumstances in which Nato would contemplate using nuclear weapons are extremely remote, Allied plans for the defence of Norway are ultimately linked to the Alliance’s overall deterrence policy. If Norway ratified the Treaty on the Prohibition of Nuclear Weapons, this would conflict with our obligations as a Nato member and thus weaken our defence and our security.

How can Norway support the objectives of the Treaty on the Prohibition of Nuclear Weapons?

Norway’s efforts to achieve a world without nuclear weapons are in line with the unanimous decision adopted by the Storting on 26 April 2016, as mentioned in the introductory background section. They are also based on the white paper Disarmament and Non-proliferation (Report No. 27 (2007–2008) to the Storting)), as approved by the Storting, which stated that Norway would:

‘… work to ensure a world free of weapons of mass destruction. A world without nuclear, chemical and biological weapons would be a safer world. Getting there will require binding and verifiable agreements that involve all countries. It is clear that it will take time to reach this objective. It is therefore all the more important to get under way with new, future-oriented measures.’

The global disarmament and non-proliferation regime is under pressure. There is growing polarisation at the international level, and there are concerns about developments in the Democratic People’s Republic of Korea (DPRK) and about the future of the Iran nuclear deal (JCPOA). It is crucial to uphold existing disarmament agreements and build confidence in them. The NPT will continue to be the cornerstone of the global disarmament and non-proliferation regime.

Norway has put forward and supported a number of initiatives in the UN that are delivering tangible results. We have taken on a leading international role in the field of nuclear disarmament verification. The UN Group of Governmental Experts on Nuclear Disarmament Verification held its first meeting in Geneva in May 2018, and is due to report to the UN General Assembly in autumn 2019. Efforts to promote nuclear disarmament verification are important for paving the way for future cuts in nuclear arsenals. Nuclear disarmament and non-proliferation cannot be viewed in isolation from nuclear security efforts. Norway is therefore also at the forefront of efforts to reduce stocks of highly enriched uranium (HEU) and to limit and eventually eliminate the use of HEU.

Implementation of Norway’s commitments under the NPT is a key element of its disarmament and non-proliferation efforts. In the period leading up to the NPT Review Conference in 2020, the Government will:

 

  • Continue Norway’s nuclear disarmament verification efforts, giving high priority to Norway’s role as chair of the UN expert group.
  • Promote measures to reduce the risk of nuclear weapons being used, such as steps to improve early warning systems and to decrease the operational readiness of nuclear weapons.
  • Promote confidence-building measures, such as greater transparency by nuclear-weapon states and strengthened negative security assurances.
  • Raise the issue of non-strategic nuclear weapons in relevant disarmament forums and in Nato. These weapons are not covered by existing multilateral arms control agreements.
  • Strengthen non-proliferation efforts by promoting universal adherence to the IAEA Comprehensive Safeguards Agreement and the Additional Protocol.
  • Strengthen the global norm against nuclear testing by calling for the entry into force of the CTBT.
  • Promote negotiations on, and the adoption of, a Fissile Material Cut-off Treaty (FMCT), as well as practical measures to reduce existing fissile material stocks.
  • Derive the greatest possible practical benefits from peaceful uses of nuclear technology that can play a part in achieving the UN Sustainable Development Goals in areas such as health, food and water security, and environmental monitoring.
  • Strengthen cooperation with like-minded allies to promote Norway’s disarmament policy priorities. Norway will also work with countries from other regional groups to counteract polarisation between countries that have ratified the NPT.
  • Continue Norway’s longstanding engagement in nuclear security with a view to preventing nuclear and radiological material from falling into the wrong hands. Priority will continue to be given to minimising and phasing out the use of highly enriched uranium.

Views of experts, researchers and civil society organisations

The Norwegian authorities maintain close contact with research institutions and civil society organisations in Norway and in other countries on issues relating to nuclear disarmament. On 14 June 2018, the political leadership of the Norwegian Ministry of Foreign Affairs had a meeting with representatives of a number of Norwegian NGOs: the International Campaign to Abolish Nuclear Weapons (ICAN Norway), the Norwegian Affiliate of IPPNW (International Physicians for the Prevention of Nuclear War), the Norwegian Red Cross, Nei til Atomvåpen (‘No to Nuclear Weapons’), Pugwash, Norwegian People’s Aid, the Norwegian Atlantic Committee and the Norwegian Peace Council.

During the spring and summer of 2018, the Ministry sought the views of a number of Norwegian research groups and researchers, including Gro Nystuen (expert in international humanitarian law), Steinar Høibråten (Norwegian Defence Research Establishment (FFI)), Sverre Lodgaard (Norwegian Institute of International Affairs (NUPI)) and Målfrid Braut-Hegghammer (University of Oslo).

At the meeting in June, the NGOs emphasised the catastrophic consequences of any use of nuclear weapons and argued that these weapons must therefore be banned. They stressed that the Treaty on the Prohibition of Nuclear Weapons must be seen as an extension of the NPT. Several of the Norwegian NGOs take part in international networks that are promoting the Treaty on the Prohibition of Nuclear Weapons globally.

Further, the NGOs argued that if it is impossible for Norway to ratify the Treaty because of the security policy framework within which it operates, it is vital to make full use of any opportunity to support the objectives of the Treaty, for example by seeking to further reduce the importance of nuclear weapons in security policy and to promote a no-first-use policy. The NGOs expressed the view that it is important that Norway pursues an active disarmament policy in various arenas, not least within Nato.

The NGOs submitted documentation on the Treaty on the Prohibition of Nuclear Weapons and said that they would submit further input and views.

Some research groups have pointed to the distinction between Norway’s obligations under international law and Norway’s political obligations. Even though it is possible to argue purely in terms of international law that Norway could ratify the Treaty, Norway’s broader political obligations entail clear limitations in this regard. Norway’s membership of Nato was highlighted in this context, and some of the researchers emphasised that it is not possible for a country to be a member of the Alliance and at the same time oppose its deterrence policy. It was also pointed out that the Treaty on the Prohibition of Nuclear Weapons could undermine the NPT. Another point that was put forward was that the verification and safeguards provisions of the Treaty on the Prohibition of Nuclear Weapons are weak, particularly compared with those of the IAEA Additional Protocol.

At the same time, the point was made that the Treaty on the Prohibition of Nuclear Weapons is here to stay, and that Norway should seek to counter the polarisation that has emerged in the field of global disarmament and non-proliferation as a result of the debate on a global ban on nuclear weapons. Norway should make use of any opportunity that arises to actively promote the goal of a world without nuclear weapons and to strengthen the mechanisms that are needed to maintain a world without nuclear weapons. In this context, the NGOs argued that, in the long term, the Treaty on the Prohibition of Nuclear Weapons could force a debate on the value of nuclear deterrence.

Similar assessments by other countries, including Sweden and Italy

Nato has stated that the Treaty on the Prohibition of Nuclear Weapons is not compatible with its Strategic Concept. None of the Nato member states is planning to reassess the question of ratification.

As far as the Government is aware, none of the other Allied countries has prepared an official review of the question of ratification of the Treaty. The position of the Nato member states on this issue is expressed in the North Atlantic Council Statement of September 2017, which makes it clear that there is consensus among the Allies that the Treaty cannot be supported. This is also reflected in the voting by the Nato countries in the UN General Assembly.

In autumn 2017, the Dutch Parliament voted against a proposal to draw up a report on possible ratification by the Netherlands of the new Treaty. The proposal was put forward in the House of Representatives by the Socialist Party in November 2017, but did not win enough parliamentary support.

In autumn 2017, the Italian Chamber of Deputies passed a resolution asking the Italian Government to work towards the goal of a world without nuclear weapons, to recognise the importance of the NPT and to act in accordance with Italy’s obligations as a Nato member. On the basis of this, the Government was to explore the possibility of Italy becoming a party to the Treaty on the Prohibition of Nuclear Weapons. Neither the previous nor the new Italian Government has so far taken the initiative to carry out an assessment of this issue.

Sweden took part in the UN conference that was convened to negotiate the Treaty on the Prohibition of Nuclear Weapons and voted for the adoption of the Treaty. In its explanation of vote, Sweden stressed that crucial elements of the treaty text as adopted did not meet Sweden’s expectations, and stated that the Treaty and the consequences of Swedish accession would require further consideration by the Government. The Swedish Government has commissioned an inquiry into the consequences of possible Swedish accession to the Treaty. The inquiry will analyse the consequences of Swedish accession to the Treaty in a number of areas including Swedish security policy. The report of the inquiry is due by 31 October 2018. The Swedish Ministry of Foreign Affairs has had several meetings with the Inquiry Chair.

Finland did not take part in the negotiations on the Treaty and has since made it clear that it is not intending to ratify the Treaty.

Like Sweden, Switzerland took part in the negotiations on the Treaty and voted in favour of its adoption. Following this, Switzerland established an interdepartmental working group to consider the Treaty and assess the consequences of accession. The working group’s conclusion was that the arguments against joining the Treaty outweigh the arguments for. In line with the working group’s report, the Swiss Federal Council decided on 15 August 2018 that Switzerland would not sign the Treaty. The Federal Council noted in particular that the Treaty entailed risks in terms of both the continued advancement of disarmament diplomacy and Switzerland's security policy interests. Switzerland will participate as an observer in the conferences of states parties, and the Federal Council has asked for a report on this work no later than 2025.

Overall assessment of possible ratification of the Treaty on the Prohibition of Nuclear Weapons by Norway

The Government attaches great importance to Norway’s Nato obligations. Nato membership is the cornerstone of Norway’s security and defence policy, and the Alliance must not be undermined. Ratification of the Treaty on the Prohibition of Nuclear Weapons by Norway or by any of the other Nato Allies would cause divisions in the Alliance. This would primarily serve the interests of countries that pose a security threat to Norway and other Nato members.

Norway and Nato share the goal of achieving and maintaining a world without nuclear weapons. This process will depend on the participation of all countries that have nuclear weapons. If Nato were to abandon its own nuclear deterrence but nuclear-weapon states outside the Alliance did not, this would make Norway and the Alliance vulnerable and create a dangerous strategic imbalance. Given the strategic importance of nuclear weapons in security policy, the Treaty has limited potential as a tool for applying political pressure.

The Treaty on the Prohibition of Nuclear Weapons establishes a new track with its own procedures within the global non-proliferation regime. Parties to the Treaty are not explicitly required to be parties to the NPT. It is therefore possible to envisage a situation where states choose to give less priority to joining and playing an active part in the NPT and instead give more weight to the Treaty on the Prohibition of Nuclear Weapons and its procedures.

One fundamental problem is that the Treaty on the Prohibition of Nuclear Weapons was negotiated outside the framework of the NPT. The five nuclear-weapon states – the US, Russia, China, France and the UK – are parties to the NPT, which contains clear disarmament obligations that have been further developed through a series of review conferences. These have resulted in recommendations for measures that will eventually lay the foundation for general and complete disarmament and enhanced security for all countries.

Another fundamental political problem is that in adopting the Treaty, countries are seeking to establish a legally binding instrument to prohibit nuclear weapons without the participation of the nuclear-weapon states. In this respect, the Treaty differs fundamentally from both the Chemical Weapons Convention and the Biological Weapons Convention, where the countries that were in possession of such weapons were at the forefront of the process. . The nuclear-weapon states have made it clear that they will not join the Treaty and they will not recognise it as part of customary international law. The Treaty also conflicts with directions provided by the white paper Disarmament and Non-proliferation (Report No. 27 (2007–2008) to the Storting) and the Storting’s unanimous decision of 26 April 2016, which made it clear that a legally binding instrument must be the result of efforts to achieve balanced, mutual, irreversible and verifiable elimination of nuclear weapons, and not vice versa.

The Treaty on the Prohibition of Nuclear Weapons does not require States Parties to accede to the IAEA Additional Protocol. The Additional Protocol contains safeguards rules that are considered to form the current global safeguards standard for nuclear material. The traditional safeguards system of comprehensive safeguards agreements under the NPT and the Treaty on the Prohibition of Nuclear Weapons do not provide a sufficient guarantee against the risk of civilian nuclear materials and facilities being diverted for military purposes, as we saw in Iraq in the early 1990s. During the negotiations on the Treaty on the Prohibition of Nuclear Weapons, a number of countries therefore sought to include a requirement to join the Additional Protocol in the Treaty, but their efforts were unsuccessful. In the Government’s view, there is a risk that the results of 30 years of work to establish a safeguards system for peaceful nuclear activities could be undermined.

Given the weaknesses in its safeguards provisions, the Treaty on the Prohibition of Nuclear Weapons is not an effective instrument either for achieving the goal of a world without nuclear weapons or for maintaining a world without nuclear weapons.

Because of these weaknesses, and because Norway could not ratify the Treaty without compromising its obligations as a Nato member, the Government’s view is that Norway should not join the Treaty.

Further disarmament must take place within the framework of the NPT, under which 191 countries, including the nuclear-weapon states, have undertaken to work towards nuclear disarmament. The NPT is the cornerstone of the international nuclear disarmament and non-proliferation regime. We must take concrete and practical steps to prevent the spread of nuclear weapons to more states and to non-state actors.

The ultimate aim is a treaty on general and complete disarmament under strict and effective international control. Unfortunately, there are no shortcuts in the process towards the total elimination of nuclear weapons. This work takes time. A legally binding framework must be the result of a long-term effort, and it is vital that the nuclear-weapon states are involved.

Norway’s priority is an integrated disarmament and non-proliferation policy that focuses on practical measures to pave the way for future cuts in nuclear arsenals. This also explains why, in the winter of 2015/2016, the Government made a significant contribution to the work of implementing the nuclear agreement with Iran.

The North Atlantic Council has also pointed out that there is a risk that the Treaty on the Prohibition of Nuclear Weapons could undermine the NPT. Nato will remain a nuclear alliance as long as countries outside the Alliance keep their nuclear weapons. The aim is to advance security through deterrence , and nuclear weapons are a core component of Nato’s collective defence and deterrence. The North Atlantic Council has therefore concluded that the Allies cannot support the Treaty. In line with the position of the North Atlantic Council, the Norwegian Government’s view is that Norway cannot join the Treaty without compromising its obligations as a Nato member.

Our common goal is a world without nuclear weapons. This must be achieved through a disarmament process that also involves the nuclear-weapon states. A prohibition on nuclear weapons that does not have the support of all the countries that actually have such weapons will unfortunately not lead to the elimination of a single nuclear warhead. The Government will maintain Norway’s disarmament and non-proliferation policy with the aim of furthering the implementation of the NPT, and will be at the forefront of efforts to implement concrete, effective measures to promote disarmament and disarmament verification at the international level.

Notes

[1] This report was published in Norwegian on 8 October 2018.

[2] Based on SIPRI Yearbook 2018.

[3] Final Document from the 2010 NPT Review Conference: ‘The Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for all States at all times to comply with applicable international law, including international humanitarian law.’

[4] Meld. St. 37 (2014-2015), Innst. 199 S (2015-2016) (In Norwegian only)

[5] The figures are for voting in the UN First Committee. In the plenary meeting of the General Assembly, 175 states voted for the resolution, none against it, and six abstained.

[6] Belarus, China, North Korea, Iran, Pakistan, Russia and Syria.

[7] Link to the treaty.

[8] The IAEA Safeguards Glossary further states: ‘The agreement is comprehensive as it provides for the IAEA’s right and obligation to ensure that safeguards are applied “on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction, or carried out under its control anywhere…” [153, para. 2]. The scope of a CSA is not limited to nuclear material actually declared by a State, but includes any nuclear material that should have been declared to the IAEA. There may be non-peaceful uses of nuclear material which would not be proscribed under the NPT and to which safeguards would not apply during the period of such use (e.g. nuclear propulsion of submarines or other warships).’

[9] As of 21 June 2018, 148 States had signed the Additional Protocol, and it had entered into force in 132 States.

[10] Protocol Additional to the Agreement between Norway and the International Atomic Energy Agency (IAEA) for the application of safeguards in connection with the treaty on the non-proliferation of nuclear weapons. Available here.

[11] Active Engagement, Modern Defence, Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organisation adopted by Heads of State and Government in Lisbon 19 November 2010.

[12] North Atlantic Council Statement on the Treaty on the Prohibition of Nuclear Weapons, 20 September 2017.