Whose Security is it Anyway? Towards a Treaty Prohibition of Nuclear Weapons

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.

The OEWG was set up against the backdrop of growing concern among a majority of states about the humanitarian consequences that any nuclear weapon detonation –by accident, mistake or intent – would have, and following the failure of states parties to the NPT to agree on an outcome document at the 2015 Review Conference. That failure reflected an increasingly unbridgeable gap between the NWS and the majority of non-NWS. The latter are frustrated by the NWS’ failure to fulfill their disarmament commitments and the ongoing “modernization” of nuclear arsenals (“pérennisation” as the French unabashedly call it).

“Deep concern” about the “catastrophic humanitarian consequences” of “any use of nuclear weapons” was already expressed in the Final Document of the 2010 NPT Review Conference. It has since been reiterated in various NPT and UNGA documents. Three diplomatic conferences, held in Oslo (March 2013), Nayarit (Feb 2014) and Vienna (Dec 2014), explored these impacts in depth. Among the conclusions that emerged are: no adequate national or international emergency response capacity exists to address the suffering caused by a nuclear detonation; the health and environmental effects would not be confined to national borders, and would be persistent and potentially irreversible (Fihn); the economic and development impact in today’s interconnected world would be significant and potentially disastrous (Helfand); the risk of a nuclear detonation is significant (Lewis et al.; Schlosser).

In light of these findings, over 120 states have formally committed to “identify and pursue effective measures to fill the legal gap of the prohibition and elimination of nuclear weapons”. 139 states voted in favour of UNGA resolution 70/48 (11 Dec 2015), supporting this so-called Humanitarian Pledge, and recognized that nuclear weapons cause “unacceptable harm” and “that the rights and needs of victims have not yet been adequately addressed”. The Pledge echoes calls by the Red Cross and Red Crescent Movement, the International Campaign to Abolish Nuclear Weapons, the International Association of Lawyers Against Nuclear Arms  and others for a treaty prohibition of nuclear weapons.

Never Mind the Gap

The existence and content of a “legal gap” has generated some controversy in the OEWG. Those who endorse the Humanitarian Pledge consider it “an unacceptable anomaly of international law” that nuclear weapons are the only weapon of mass destruction not yet subject to a universal, comprehensive treaty ban. In addition, some states have argued that “additional and more specific legally binding provisions and other normative arrangements” are required to “operationalise and complement” the NPT’s non-proliferation provisions, and that such measures are needed for the full implementation of its multilateral disarmament objective.

Other states dispute the existence of a legal gap, and by implication, the need to fill it. The Netherlands submits that nuclear weapons are not “intrinsically unlawful” even in the absence of a specific permission in international law and therefore, Art. VI does “not contain a legal gap”. Although the Netherlands accepts that Art. VI contains an “obligation of result” (and not only of conduct) to achieve the “complete elimination of all nuclear weapons”, which requires the adoption of further measures for its implementation, they consider that beyond the need for these measures to be “effective”, nothing dictates the principles and modalities of, or the sequencing of steps towards this goal. Similarly, Canada does not find a legal gap, but nevertheless acknowledges that its disarmament policy “foresees a prohibition on nuclear weapons”.

Thus, it is not the existence or absence of a legal gap (however characterized) that is at issue when discussing a nuclear weapons prohibition but instead, the priority that states attach to various legal (and other) measures – a reflection of the underlying motivations that drive different stakeholders.

What makes for an Effective Legal Measure?

What legal measures would be successful in achieving the desired result, i.e. to attain and maintain a world without nuclear weapons, has become a key question. Often cited examples of such measures are Nuclear-Weapon-Free-Zone (NWFZ) treaties, the 1996 Comprehensive Test Ban Treaty (awaiting its “early” EiF) and a prohibition treaty on the production of fissile materials (awaiting “immediate commencement” of its negotiation since the mid-1990s). Many states acknowledge that, in addition, a treaty-based prohibition of nuclear weapons will (eventually) be needed.  The OEWG therefore explored essential elements of such a prohibition and the different forms it could take. A report by ILPI and UNIDIR analyzes the main options on the table:

• A comprehensive nuclear weapons convention providing for the prohibition and elimination of nuclear weapons in a time-bound manner.
• A framework agreement providing for the pursuit of a range of legal measures according to a negotiated sequence (possibly resembling the 1980 Convention on Conventional Weapons in structure).
• A “step-by-step” or “building-block” approach, recently re-branded as the “progressive approach”, where elimination would precede prohibition.
• A stand-alone “ban treaty” where prohibition would precede elimination (along the lines of e.g. the 2008 Convention on Cluster Munitions).

Aside from the aforementioned underlying motivations, a state’s preference for one of these options also reflects its understanding of the role legal prohibitions play in disarmament. Advocates of the “progressive approach” see a prohibition intervening only once the “minimization point” of the nuclear weapons elimination process has been reached – a final “building block”. The participation of nuclear-armed states in the instrument (and, thus, its negotiation) would be critical to the prohibition’s effectiveness. Its value would lie mainly in the maintenance of a nuclear-weapon free world, by ensuring irreversibility, for example (Anthony).

Supporters of a ban treaty, in contrast, emphasize the contribution a comprehensive, non-discriminatory treaty prohibition would make to attain a world free of nuclear weapons, and note the precedent set by other disarmament treaties (for conventional weapons and WMD) where prohibition has preceded elimination. In their view, a prohibition can and should be pursued independently of the process of elimination, and the participation of nuclear-armed states is not required for the prohibition’s effectiveness. Although recognizing that the effectiveness of any legal measure is also a function of its universality and political viability, advocates of a ban treaty stress that norms shape what is deemed politically viable and acceptable. A ban treaty would not only prevent state parties from assisting in nuclear weapon-related activities, including financing them (Sharkey/Boillot), it would fundamentally change the normative landscape by promoting the delegitimising of nuclear violence and codifying the stigma against nuclear weapons (Ritchie).

Whose Security is it Anyway?

The debate about effectiveness is also a debate about agency, authority, legitimacy and responsibility. Over several decades, the NWS have claimed and been attributed “particular responsibility” to determine the pathways and pace of disarmament, with the rest of the world assuming a less active role.

As in other humanitarian disarmament processes, the characterization of nuclear disarmament as a humanitarian issue has reframed the discussion and changed this dynamic (Borrie/Caughly). Together with those who wield the weapon, those who have experienced them first hand and those most likely to suffer the effects of the weapon, are recognized as legitimate participants in the discussion. In particular, members of NWFZs and states dealing with the legacy of nuclear testing have become powerful voices in the debate (even though non-NWS engaged in extended deterrence, so-called “umbrella states”, still occupy a disproportionate amount of speaking slots.)

As a consequence, nuclear weapons are increasingly portrayed as “an existential threat to the planet, global peace and the future survival of humanity”  – a collective liability, rather than a legitimate guarantor of stability or a national asset. The burden has shifted onto those invoking “legitimate security concerns of States” to justify the danger their reliance on nuclear weapons poses to “collective human security”. For, as Ireland noted, “when we speak of security, we speak of the security of humanity, of the men, women and children living in the nations we represent”.

Security, like sovereignty, can and must be justified by humanity (Peters). As the member states of the CELAC pointed out: there are “more rational alternatives in addressing security concerns” than to rely on “the constant threat of mutual annihilation”. Twenty years after the ICJ last pronounced itself on the legality of nuclear weapons, the OEWG and the pending RMI cases afford a valuable opportunity for critical reflection on the role of international law, and the role and responsibility of international lawyers, in preventing the massive killing of the innocent (Koskenniemi).