On Friday, 13 May 2016, the UN’s Open Ended Working Group (OEWG), convened pursuant to UNGA resolution 70/33 (7 Dec 2015) and mandated, inter alia, to “substantively address concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons”, closed its second session with a majority of states calling for negotiations of a legally binding instrument (or instruments) to prohibit nuclear weapons to start in 2017.
Although (or perhaps because) the nuclear-armed states have chosen not to play ball, for the first time in decades, a treaty outlawing nuclear weapons is a real possibility. The OEWG, which will meet for a third time in August to agree on recommendations to the UNGA, and the ensuing tug-of-war in the UNGA’s First Committee in October, offer an historic opportunity for multilateral nuclear disarmament negotiations to take a big step forward. The reframing of nuclear disarmament as a humanitarian concern has been instrumental in generating strong momentum in support of negotiations. This post surveys some of the legal controversies that arose during the OEWG and explains why, from a humanitarian disarmament perspective, a treaty prohibition of nuclear weapons is both imperative and an effective disarmament measure, even without the participation of the nuclear-armed states.
Open to all, the OEWG’s May session has been attended by 100 states, as well as international organizations and civil society representatives, including survivors of the atomic bombings. None of the nuclear-armed states, i.e. the Nuclear Weapon States (NWS) recognized under the 1968 Nuclear Non-Proliferation Treaty (NPT) –China, France, Russia, the UK and the US – nor the DPRK, India, Israel or Pakistan, participated, casting further doubt on the good faith performance of nuclear disarmament obligations by the respondents in the RMI cases pending before the ICJ.
There is general agreement that the ultimate objective is a world free of nuclear weapons. To that end, all states parties to the NPT (and arguably, all states) have a legal duty to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” pursuant to Art. VI, NPT and customary international law. Views diverge, however, on the pathways, means and urgency with which this goal should be attained. Read the rest of this entry…