OEWG Report, Vol. 2, No. 2
Legal gaps and effective measures
22 February 2016
Mia Gandenberger and Ray Acheson
Day one of the Geneva-based open-ended working group (OEWG) on nuclear disarmament laid out the legal gaps around nuclear weapons and the proposals for filling these gaps. Discussion almost immediately zeroed in on the key proposal. Prohibition—whether for or against—was on everyone’s lips, focusing the OEWG’s discussion on the merit and feasibility of a nuclear weapon ban treaty.
The following report provides an overview of the day’s presentations and highlights some of the key points from ensuing discussions. It also offers some reflections and analysis.
After addressing the organisational matters, invited speakers recalled the work of the first OEWG and took stock of developments since then. An exchange of views followed, with Egypt, Venezuela, Netherlands, Mexico, South Africa, New Agenda Coalition, Canada on behalf of a group of states, Mayors for Peace, Japan, Bangladesh, Finland, the Association of South East Asian States (ASEAN), the Geneva NGO Committee for Disarmament, Ireland, Germany, Switzerland, Kenya, Hiydankyo, and Unfold Zero taking the floor.
During the afternoon session, the first panel addressed concrete effective legal measures, legal provisions, and norms that will need to be concluded to attain and maintain a nuclear weapon free world. Panelists included Gro Nystuen of the International Law and Policy Institute (ILPI), Kathleen Lawand of the International Committee of the Red Cross (ICRC), and Rebecca Johnson of the Acronym Institute for Disarmament Diplomacy. The three speakers examined existing law applicable to nuclear weapons and effective legal measures in the context of possible pathways towards a nuclear weapon free world. Mexico, Malaysia, Latvia, Brazil, Germany, Cuba, Iran, Switzerland, Japan, Australia, Austria, and Wildfire commented on the presentations and highlighted issues the OEWG should further address.
To begin the substantive discussions of the OEWG, Ambassador Ms. Elayne Whyte Gomez of Costa Rica and Mr. Tim Caughley of the United Nations Institute for Disarmament Research kicked off discussions about the state of play relating to nuclear disarmament discussions. Ambassador Gomez recalled the work and outcomes of the 2013 OEWG, while Mr. Caughley reviewed developments on nuclear disarmament both inside and outside the UN.
When the Chair opened the floor for an exchange of views, groupings familiar from last year’s nuclear Non-Proliferation Treaty (NPT) Review Conference and UN General Assembly First Committee became apparent. While many states called for urgent action, others, including Germany, Netherlands, Japan, Canada speaking on behalf of a group of states, and Finland, cautioned that security considerations of states must be taken into account.
As if responding to these statements, Bangladesh asked what could be a bigger security concern than being the victim of a nuclear attack?
Similarly, Ireland’s Ambassador O’Brien noted that we live in a world “where everything is interlinked and we are all part of one global village. In such a world,” she argued, “multilateralism comes to the fore.... In such a world, questions of security impact us all. In such a world, the safety, security and existence of all humanity are at stake. And in such a world there is no place for nuclear weapons.”
Effective legal measures
In the afternoon, the first panel of this meeting outlined some of the core questions before this OEWG on effective legal measures.
Gro Nystuen of ILPI outlined existing international law on nuclear weapons, focusing on what additional legal measures, provisions, and norms would be required to achieve a nuclear weapon free world. She pointed out that there is already a comprehensive body of law regulating nuclear weapons, namely, the NPT, the nuclear weapon free zone treaties, the Partial Nuclear Test Ban Treaty and the Comprehensive Test Ban Treaty, UN Security Council Resolution 1540, and the Nuclear Terrorism Convention, as well as other instruments that regulate nuclear weapons implicitly, including international humanitarian law (IHL), environmental law, and others. However, some important gaps still remain in the international legal framework compared to, for example, biological or chemical weapons. These gaps include use, development, testing, manufacturing, production, stationing/deployment, possession, and stockpiling. Ms. Nystuen stressed that regardless of the preferred approach to nuclear disarmament, a number of questions concerning how to fill these legal gaps will have to be addressed.
Building on this, Kathleen Lawand recalled the statements of the ICRC from 2011 and 2015, which respectively called on states to ensure that nuclear weapons are never again used, and to establish a time-bound framework to prohibit and eliminate nuclear weapons. She also shared some observations about how IHL applies to nuclear weapons, arguing that while IHL does not explicitly address nuclear weapons, the use of these weapons would have to comply with the principles of IHL. The evidence highlighted through the series of meetings on the humanitarian impact of nuclear weapons makes it difficult to imagine how any use of nuclear weapons could be compatible with IHL. She also argued that more than just the use of nuclear weapons will have to be prohibited in order to effectively prevent their use. Ms. Lawand stressed that in the view of the ICRC, urgent actions are needed in light of evidence of risk of nuclear weapon use and the catastrophic humanitarian consequences that any such use would entail.
As the final speaker Rebecca Johnson of the Acronym Institute reviewed past disarmament efforts and elaborated on what would constitute an effective legal measure. Such a measure would address a legal gap or problem; contribute practically towards removing impediments and enabling and strengthening legal regimes to bring about the desired objective; clarify or add to existing legal prohibitions or obligations, or spell out and facilitate implementation of international obligations and commitments that have not been fulfilled; and contribute something substantive upon which states can act, especially in the near term. Drawing on these understandings, Ms. Johnson argued that a nuclear weapon ban treaty seems to be the most realistically achievable in the near term.
During the following exchange of views many states addressed the presentations and outlined challenges remaining for the OEWG. A number of these indicated support for moving forward with a legally-binding instrument to prohibit nuclear weapons.
Malaysia explained that as most legal measures proposed are currently blocked by the nuclear-armed states, three not mutually exclusive options remain: a treaty banning nuclear weapons, a framework convention, and increasing verification capacity. The delegate noted that a ban treaty could be negotiated now and be part of a wider framework later.
Reviewing the measures proposed by the panelist, Brazil noted that a ban treaty would have the merit of being open to all and blockable by none. Brazil proposed the OEWG consider elements that would have to be included in all approaches, suggesting that even states with reservations to a ban treaty can engage in these discussions.
Switzerland suggested that participating states should systematically assess the different approaches based on objective criteria such as scope and content, membership required to make a measure effective, its value added, and its anticipated degree of universality. Switzerland also noted that nuclear weapons are the one weapon of mass destruction not yet comprehensively prohibited.
Japan, Australia, and Germany, on the other hand, argued that diverging views on the best way forward remain. Japan suggested among other things increased transparency, a moratorium of nuclear testing and production of fissile material by all nuclear-armed states, the entry into force of the CTBT, the commencement of negotiation on a Fissile Material Cut-Off Treaty, as well as a post New START agreement between the United States and Russia. Australia underlined the need to consider the nuances of nuclear disarmament and in particular the context in which it is being negotiated. Similarly, Germany argued that nuclear weapons could only be abolished as a result of negotiations with mutual trust between partners as the necessary condition for further progress. Therefore it was not realistic to expect advances without nuclear-armed states. Latvia gave a list of activities similar to Japan’s, though it included the ban treaty as something that could be embedded in the framework of these other measures.
Responding to these points, Mexico’s delegation wondered if, given that the nuclear-armed states have chosen not to participate, those participating in the meeting needed to ask themselves whether nuclear disarmament can advance without nuclear-armed states. Additionally, Wildfire suggested the OEWG should examine the role of nuclear alliance states, given the absence of the nuclear-armed states, and how legal measures would affect these states.
Other delegations posed questions to the panelists that, due to time constraints, could not be fully addressed; however, they might inform the discussion in the remaining meetings. For example, Austria sought the panelists’ views on the obligation of non-nuclear weapon states to engage in good faith on nuclear disarmament, while Mexico questioned the compatibility of the concept of nuclear deterrence with international law.
The meeting opened with former UN Secretary-General Kofi Annan giving a keynote speech criticising the “total lack of common and coherent strategy” for nuclear disarmament, the fact that nuclear weapon modernisation is overshadowing any limited gains in disarmament, and that there are increasing tensions among nuclear-armed states. This grim reality provides the backdrop for states and others to put forward concrete ideas for effective measures that can help disrupt the march towards the catastrophic consequences of the use of nuclear weapons.
The most effective of these measures, in a context in which the nuclear-armed states refuse to even show up to discuss ways forward let alone agree to eliminate their arsenals of terror, would seem to be a treaty prohibiting nuclear weapons. With only one day of discussions concluded, the ban treaty stood out as the most reasonable and feasible way forward. It dominated the conversation, whether speakers were in favour of pursuing it or not.
Those opposing a legal prohibition on nuclear weapons seem, among other things, to accept a limit to their own agency, and the agency of other non-nuclear-armed states. The Netherlands, for example, argued that the effectiveness of any measure “will ultimately depend on the willingness of those states that possess nuclear weapons to implement it.” This would seem to remove from other states the opportunity to take action—even if those actions would be consistent with their interests at the levels of state and human security. It makes Austria’s question about the obligation of good faith from non-nuclear-armed states particularly compelling. If the agency of non-nuclear-armed states is really so limited, does that mean they do not have responsibility for the potential annihilation of humankind? Do they not have a responsibility to negotiate effective measures for nuclear disarmament? If that is the case, why did they accept this responsibility in a legally-binding treaty, through article VI of the NPT?
While the Netherlands is not “against” a ban, it argues that it would only come into place as a “final element,” when nuclear weapons “no longer fulfill a function in the security of states.” This overlooks the potential of the ban treaty, however, to affect the security assessment of states in relation to nuclear weapons. A prohibition could help states to overcome their reliance on weapons of terror as an illusory means of security.
It is exactly these kinds of discussions that should take place in the OEWG. While discussions will continue for the rest of the week, there are really only two questions: are the states that have committed through the Humanitarian Pledge to fill the legal gap for the prohibition and elimination of nuclear weapons ready to move forward now, and how will they proceed? It’s time to get started with a prohibition, even if the nuclear-armed states refuse to join the majority of the world in rejecting these weapons of terror as illegitimate, dangerous, and irresponsible. While not all states are supportive of this approach, it is through discussions like these that supportive states can illuminate the value, practicality, and effectiveness of a legal prohibition of nuclear weapons.