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OEWG Report, Vol. 2, No. 4

On balance and choices at day three of the OEWG
24 February 2016 


Mia Gandenberger and Ray Acheson

Today’s afternoon-only session concluded exchange of views of the open-ended working group (OEWG) on nuclear disarmament 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. Austria, Finland, Belgium, Australia on behalf of a group of states, Australia, Malaysia, Sweden, Netherlands, IALANA, Mexico, Egypt, Poland, PNND, Japan, Indonesia, Philippines, Religions for Peace, Brazil, Iran, Basel Peace Office, Cuba, Turkey, Mayors for Peace, Venezuela, World Council of Churches, Wildfire, Australia, Austria, and International Fellowship for Reconciliation participated in the debate.

Legal gap

Austria introduced its working paper 5 on “The ‘legal gap’, the Treaty on the Non-Proliferation of Nuclear Weapons and different approaches on taking forward nuclear disarmament negotiations.” The text outlines the conclusion from the conferences on the humanitarian impact of nuclear weapons and highlights the Humanitarian Pledge, which is now supported by 125 states.

The Netherlands, on the other hand, once again questioned the existence of a legal gap in the international legal body relating to nuclear weapons and suggested states can progress “without being bogged down in discussions on a hypothetical 'legal gap'.” In responding, Mexico highlighted that with the wide range of interpretations of obligations contained in article VI of the nuclear Non-Proliferation Treaty (NPT) alone, there clearly is a legal gap. Austria also noted that the very structure of the NPT requires additional legal measures for its implementation. Austria’s working paper explains that the legal gaps left open by the NPT on non-proliferation have been filled over time with a variety of measures. Similarly, the NPT has left several gaps “with respect to the specific legal and non-legal measures that are required for the fulfillment of Article VI.”

Inclusivity

Returning to the question of inclusivity, the Netherlands reminded participants that “as the [International Court of Justice] confirmed in its nuclear weapons opinion, states simply cannot be bound by legal rules that they have not—at the very least implicitly—consented to.” Therefore, the Dutch delegation argued, nuclear-armed states needed to be included in negotiations of further legal measures related to nuclear weapons. Other states, including Austria, Brazil, Indonesia, Philippines, Malaysia, and Mexico, argued that some legal measures could be pursued without nuclear-armed states.

In that context, Mexico stressed, the deliberate absence by some did not render the OEWG non-inclusive. Austria too underlined that the OEWG is open to all member states and had been created by the most universal and inclusive forum of the UN, its General Assembly.

Building blocks and security concerns

Australia speaking on behalf of a group of states introduced working paper 9 entitled “A progressive approach to a world free of nuclear weapons: revisiting the building blocks paradigm.” This paper outlines the so-called building blocks approach to nuclear disarmament and suggests measures such as increasing transparency and risk reduction, as well as legal measures, including the early entry into force of the Comprehensive Test Ban Treaty and post-New START negotiations between the United States and Russia. States cosponsoring the paper, including Japan, Australia, Germany, Turkey, Belgium, and Poland, again stressed the importance of bearing in mind the security considerations of states and geopolitical realities.

Responding to these delegations and following up on the presentation by Australia, Mexico highlighted some concerns with the working paper and the notion of legitimate security concerns. This concept was not elaborated enough, Mexico argued, as it is not clear whose security these concerns focus on and if states are for or against collective security, as Austria had also pointed out.

With regard to transparency and trust-building measures, Austria agreed that over the past few years, mistrust seems to have increased among states on this issue. However, Austria argued, this is due to the implementation failures of states when it comes to various agreements and commitments that had been agreed to by consensus. The onus is on those countries that have nuclear weapons or rely on them as part of nuclear alliances to diminish that mistrust. In that connection, Mexico pointed out that boycotting the meeting will not increase trust.

Prohibition and elimination

The comprehensive prohibition of nuclear weapons through a ban treaty and the nuclear weapons convention were the two concrete legal measures discussed today. Iran, Egypt, and Cuba all underlined their unwavering support for a nuclear weapons convention encompassing both provisions for the prohibition and elimination of nuclear weapons. Other measures would fall short of achieving the goal of a nuclear free world, they argued, and as Egypt stressed in its intervention, prohibition could not be disassociated from elimination.

On the other side, Brazil, Indonesia, Philippines, and Malaysia reiterated that a comprehensive ban treaty could be negotiated now, with protocols on elimination to be concluded once the nuclear-armed states join the instrument.

Urgency of action

In reacting to the Austrian working paper, Australia did not agree with the portrayal of the humanitarian initiative as having urgency in contrast to the step-by-step approach allowing for the maintenance of a nuclear weapon-based security system.

Austria in responding to that point reiterated that “in light of the unacceptable humanitarian consequences and risks associated with nuclear weapons, all possible effective measures—legal and non-legal—need to be taken in order to move away from nuclear weapons based security system with urgency.” Austria noted that nothing in the interventions of the step-by-step proponents have contested that conditionalties exist for nuclear disarmament. Instead, the proposals outlined in Australia’s WP9 perpetuate and reinforce those conditionalities. This is important to consider, argued Ambassador Kmentt, when looking at the urgency and potential effectiveness of the various approaches and proposals on the table.  

Reflections

Conditionality is an important question when it comes to nuclear disarmament. The nuclear-armed states and some of their allies consistently argue that the conditions have to be created for disarmament. However, as we and many others have pointed out equally consistently, non-proliferation obligations have been implemented rigorously since the NPT was adopted, without any notion of conditionality.

This imbalance between the implementation of disarmament and non-proliferation obligation is part of what makes the demand from nuclear-dependent states to “balance” humanitarian and security concerns seem so very disingenuous. Where is a place for balance between the threat of mass destruction on the one hand and a privileged power position on the other? The perception by a few governments that they “benefit” from nuclear weapons and therefore do not want to get rid of them cannot be balanced with the understanding by the vast majority of the world’s governments that nuclear weapons do not provide security and in fact threaten every living entity on our planet.

Also, where is a place for balance between complying with one’s legal obligation and not complying with it? All NPT states parties are legally obligated to participate in activities to eliminate nuclear weapons. They cannot simply choose that becomes a perceived benefit from their select possession or reliance on nuclear weapons they do not have to act with the same due diligence in accordance with the law as any other state. There is no balance between compliance and non-compliance. If this argument were to be made in another context, it would never be accepted by these states that claim it for themselves when it comes nuclear weapons.

“On what basis does law exist?” asked Jonathan Frerichs of the World Council of Churches. If law is based on common standards, shared interests, mutual obligations, legitimate expectations, universal values, and good faith, it would seem that these have not taken root within the nuclear regime. Instead, it seems that “what has flourished is rather different: double standards, exclusive interests, unequal obligations, and dangerous expectations. Good faith seems to wither on the vine.” This state of affairs has undermined the very base upon which law is built. “Nuclear weapons appear to have obstructed the development of law at its root,” said Frerichs, “especially any legal measure effective enough to control them.” He argued that an explicit prohibition against nuclear weapons would be instrumental in correcting this trend. “It is the steel I-beam strong enough to span the legal gap and on which other law can be built.”

The ban treaty has always been proposed not as a potion that will make nuclear weapons disappear overnight, but rather as a step to repairing the egregious imbalance in implementation of the law on nuclear weapons and towards changing the legal, political, social, and economic landscape surrounding nuclear weapons. A prohibition on nuclear weapons makes it legally, politically, socially, and financially more difficult for states to retain nuclear weapons physically and as part of their security doctrines and alliances. It cannot force their elimination, but it would help to compel it.

The choice before states is not whether they should negotiate a treaty prohibiting nuclear weapons or a treaty eliminating them. Nor is it a choice between a step-by-step or building blocks approach and a prohibition treaty.

The only states that can negotiate a treaty eliminating nuclear weapons are the ones that possess them. The majority of states opposed to a ban treaty are those states, or their allies that support the retention of nuclear weapons for a perceived security benefit—a tool of power and domination through the threat of massive nuclear violence.

The only states that can pursue a step-by-step approach, again, are those that possess nuclear weapons. Increasing transparency about arsenals? Not testing nuclear weapons? Stopping the production of fissile material for weapons? De-alerting nuclear weapon systems? All of these measures are fine, except can only be implemented by the handful of states that actually possess them.

So what is our choice? The nuclear-armed states are not even here. They do not even want to have a conversation with the rest of us about what to do. There is only one choice at this point in time when the nuclear-armed states are refusing to even engage let alone comply with their legal obligation to pursue effective measures for nuclear disarmament. Our only choice is to pursue an effective measure without them—to negotiate a treaty that can impact our own engagement with and relationship to nuclear weapons—financially, politically, socially, legally, morally, and ethically.

Australia said today that it still lacks some clarity as to what a ban treaty would consist of. Civil society has put forward views on that, as did Brazil on Tuesday. We hope that states take up this point in the remaining time left in this session, but also through working papers in the intersessional period and in May.