OEWG Report, Vol. 2, No. 3
Prohibition takes centre stage again during second day of the OEWG
23 February 2016
Mia Gandenberger and Ray Acheson
Today’s afternoon-only meeting of the open-ended working group (OEWG) on nuclear disarmament continued the exchange of views on Panel I on concrete effective legal measures, legal provisions, and norms that will need to be concluded to attain and maintain a nuclear weapon free world. The panelists, Ms. Gro Nystuen, International Law and Policy Institute, Mr. Louis Maresca, International Committee of the Red Cross (in place of Ms. Kathleen Lawand), and Ms. Rebecca Johnson, Acronym Institute for Disarmament Diplomacy, were available for questions and comments from Italy, New Zealand, Egypt, Costa Rica, the Netherlands, Article 36, Zambia, Nicaragua, Iraq, Thailand, Brazil, the International Campaign to Abolish Nuclear Weapons (ICAN), Ecuador, Algeria, Spain, South Africa, Japan, Mexico, Ireland, ICAN France, and Australia.
Prohibition as a new approach
Many speakers, including New Zealand, Ireland, and South Africa stressed that fresh approaches to nuclear disarmament are needed. New Zealand sees “no reason why the pathway adopted for the elimination of other weapon systems, including for the elimination of both other types of WMD—that of a legally-binding prohibition—should not equally be applicable as a pathway for the elimination of nuclear weapons.” Similarly, South Africa suggested that an instrument that stigmatises the possession and use of nuclear weapons may serve as an effective measure for nuclear disarmament, even if it would require additional instruments to be negotiated for the elimination of these weapons.
Brazil agreed that since the participation of the nuclear-armed states would be required for a nuclear weapons convention, a comprehensive ban treaty prohibiting the use, possession, stockpiling, development, and transfer of nuclear weapons and the necessary fissile material could be concluded. While this instrument would not immediately include measures for the elimination of nuclear weapons, such measures could be included in an additional protocol similar to IAEA INFCIR/153, which would provide the instrument with some flexibility. Brazil suggested that this approach would streamline and reinforce the NPT article VI obligations and that once the nuclear-armed states joined the new instrument and negotiated the elimination of their arsenals, the provisions in that article that temporarily recognise the possession of nuclear arms by China, France, Russia, the United Kingdom, and the United States would cease to exist.
While not elaborating on the matter in such detail, Costa Rica and Thailand highlighted that a ban treaty would institutionalise the prohibition of nuclear weapons now, thereby creating the necessary norms to allow for their elimination at a later stage. Zambia thought a ban treaty the most practical measure that could be taken, given the absence of the nuclear-armed states from the meeting.
Not everyone is yet keen on the prohibition approach. States that rely on nuclear weapons in their security doctrines remain reluctant to consider moving ahead without the nuclear-armed states and seem uncomfortable with the ban treaty in general. The Netherlands and Australia argued that the obligations of the nuclear Non-Proliferation Treaty (NPT) would be enough, as it prohibits non-nuclear weapon states from possessing nuclear weapons. Australia continued that a ban treaty, negotiated by non-nuclear-armed states (party to the NPT) alone, would not change the status quo, but would risk creating an ambiguous situation wherein some of these non-nuclear-armed states would have the option not to join the new instrument. Italy echoed the old argument that “simply banning nuclear weapons” by itself will not guarantee their elimination. Egypt also expressed some concerns about how a ban would interact with existing instruments such as the NPT.
The question of inclusivity
Spain stressed the importance of an “inclusive approach” to avoid polarisation, arguing that states would have to find a way to harmonize considerations of the humanitarian impact of nuclear weapons with considerations of security and strategic stability. Similarly, Australia expressed its concern that if a new legal instrument is negotiated without the nuclear-armed states and they remain outside the treaty, this might create two categories of states (those inside and outside the treaty), thereby risking the further entrenchment of nuclear-armed states in their unwillingness to engage with nuclear disarmament efforts.
Addressing the issue of inclusivity, Mexico’s delegation recalled that the de facto veto power of nuclear-armed states in starting negotiations on nuclear disarmament has been the modus operandi of the international community for decades. However, this is not acceptable anymore. Ambassador Lomonaco stressed that the absence of nuclear-armed states in the OEWG or other forums cannot and must not stop progress. The nuclear-armed states have chosen, at least for now, not to participate. This restricts the options available, he argued, which means it might be useful to engage in an exercise that could advance without nuclear-armed states in the room.
In responding to some questions posed from the floor, the panelists stressed the inclusivity of the OEWG, which meets under UN General Assembly rules with all UN member states invited and allowed to participate on an equal footing. Further they highlighted the compatibility of possible additional instruments with the existing international regulations of nuclear weapons.
In closing the Chair suggested states focus their interventions tomorrow on possible elements of effective legal measures as well as to comment on the feasibility of the approaches or pathways discussed during the debate so far, possibly elaborating on pros and cons of each approach.
Tomorrow’s meeting will take place at 15:00 in room XVII (please note the room change).
For many states participating in the OEWG, the legal and comprehensive prohibition of nuclear weapons seems to be crystalising as the most feasible, practical, and effective way forward in the current context.
Some arguments against a ban treaty continue to linger. But the concerns raised here and elsewhere are not insurmountable.
A few nuclear-allied states continue to argue that a ban treaty will not guarantee the elimination of nuclear weapons. Of course not. It is not intended to. Neither are any of the other measures that have been proposed over the years. The ban treaty is not intended to be a “short cut” but rather, as Thomas Nash of Article 36 explained, “a reinforcement to the legal and political infrastructure supporting the elimination of nuclear weapons.” As Reaching Critical Will and Article 36 laid out in a paper in 2014, a ban treaty would have a number of important impacts, such as “undermining the financial support to manufacturing these weapons, changing the political circumstances in nuclear-armed states as well as internationally, including in relation to general perceptions of nuclear weapons in parliaments, the media and the public.”
The ban treaty would not undermine existing law. Reaching Critical Will has looked at the potential relationship between a ban treaty and the NPT, emphasising that a ban treaty would actually help prevent the NPT’s collapse under the pressures of hypocrisy and frustration. Article 36 has examined a ban treaty in the context of the wider legal landscape, finding that “a comprehensive, unambiguous treaty prohibition of nuclear weapons would build on, strengthen and be coherent with” this landscape.
When it comes to polarisation, we need to ask ourselves where we are now. With Russia saying those wanting nuclear disarmament have flown off to outer space, with the United States warning that such a ban treaty might lead to the use of nuclear weapons, with the nuclear-armed states refusing to participate in these meetings, and with billions of dollars being poured into nuclear weapon modernisation to extend their lives into the indefinite future, are we not already polarised?
Similarly, when it comes to the idea that a ban treaty could set up two different categories of states, we must look at the existing landscape. There are already two categories of states—the five that possess nuclear weapons and the rest. That does not account for the nuclear-armed states that will not join either of these groups. This division is codified in international law. The five nuclear weapon possessors refuse to comply with their legal obligation to disarm.
It is precisely this division that a ban treaty can help overcome. A prohibition would reject the idea that some countries can have nuclear weapons, even for a time, while others cannot. It would codify in international law the rejection of nuclear weapons, for everyone, at all times.
Mexico’s call for engaging in work that can be done without the nuclear-armed states seems to be gathering support. Several countries over the past few days have argued that it’s time to move ahead without them. The Chair has called on states to focus the remainder of their intervention on specific elements for effective measures. We encourage states to outline what they would see as elements of a ban treaty, as Brazil began to do today. Below are some resources from civil society on this matter that we hope are useful for informing this debate. We look forward to tomorrow’s discussion!
A treaty banning nuclear weapons: developing a legal framework for the prohibition and elimination of nuclear weapons, Reaching Critical Will and Article 36, April 2014
Filling the legal gap: the prohibition of nuclear weapons, Reaching Critical Will and Article 36, April 2015
Preventing collapse: the NPT and a ban on nuclear weapons, Reaching Critical Will, October 2013
The effects of nuclear weapons under international law, Article 36, December 2014
Banning nuclear weapons: responses to ten criticisms, Article 36, December 2013
Banning nuclear weapons without the nuclear-armed states, Article 36, October 2013