OEWG Report, Vol. 2, No. 11

Editorial: Who’s afraid of a ban treaty?
10 May 2016

Ray Acheson

The open-ended working group on nuclear disarmament (OEWG) began its core work on Monday, with a discussion of essential elements for effective legal measures, provisions, and norms for maintaining a nuclear weapon free world. The majority of participating states focused on elements for a legally binding instrument prohibiting nuclear weapons, which they see as the most feasible, practical, and urgent measure in the current context. The discussion highlighted growing support for a treaty banning nuclear weapons and continued to isolate opposing states as nuclear weapon supporters acting against the interests of the nuclear Non-Proliferation Treaty (NPT) , nuclear disarmament, and global security.

Comprehensive prohibitions

A treaty banning nuclear weapons will strengthen the global standard against their use and possession and foster their elimination, explained Nicaragua. To this end, a comprehensive set of prohibitions is required, as delegations supporting the ban treaty agreed. These states emphasised the importance of prohibiting all relevant nuclear weapon related activities, including the use, development, production, stockpiling, transfer, acquisition, deployment, and financing of nuclear weapons, as well as assistance with these acts.

Working papers 14, 15, 17, 34, and NGO/3 offer suggested elements of a prohibition treaty. These papers also all suggest that negotiations on such a treaty should begin in the near term, with WP.34 calling for the UN General Assembly to establish a negotiating conference in 2017. This paper, which was originally submitted by Argentina, Brazil, Costa Rica, Ecuador, Guatemala, Indonesia, Malaysia, Mexico, and Zambia, has now also been endorsed by Austria and Jamaica, and the Philippines joined as a cosponsor. These countries, among others, consistently call for a wide-ranging set of prohibitions that are essential for closing the current legal gaps related to the development, testing, and possession of nuclear weapons.

Legal gaps

There are still those few governments who deny that a legal gap exists when it comes to the governance of nuclear weapons. Italy, for example, argued that there is no legal gap and that the NPT provides a sufficient legal framework for nuclear weapons.

As Reaching Critical Will and Article 36 explain in working paper NGO/2, however, the legal gap “arises from various deficits in the regulation of activities involving nuclear weapons, as currently codified.” Furthermore, “The current international legal regulation of nuclear weapons is fragmentary, with several instruments covering only certain areas or activities,” and “the rules in the existing instruments on nuclear weapons apply to different states in different ways.”

Yet some nuclear-weapon supportive countries continue to claim there are no legal gaps and thus no need for a prohibition treaty. Some have developed new contortions to justify this position. Canada’s WP.20/Rev.1, for example, asserts that a legal gap can only arise when there is “an inherently ‘illegal’ situation.” However, as New Zealand pointed out, there is actually no such thing as inherent illegality. “Something is either legal or illegal,” explained Ambassador Higgie, “One may be able to talk about inherent immorality but there has hitherto been no known concept of inherent illegality.”

“Dangers” of a nuclear ban

Strange arguments abound in the opposition to a nuclear weapon ban. A number of nuclear-weapon supporting states, including Belgium, Germany, Latvia, and Poland, argued either that the nuclear ban treaty will be completely ineffective or will be detrimental to the international security environment. Some of them, in a rather incoherent way, argue both. Poland, echoing a victim-blaming US statement from the 2015 First Committee, even suggested that banning nuclear weapons could lead to a nuclear weapon detonation.

It is ironic that states storing nuclear weapons, maintaining a role for nuclear weapons in their security doctrines, and / or participating in exercises preparing for the use of nuclear weapons feel in a position to suggest that there is a danger in prohibiting their weapons of mass destruction. These same states continue to argue that nuclear weapons have a “security dimension” that those wanting to ban them “ignore”.

Yet as Austria’s WP.4 and Jamaica and Ireland in recent interventions have noted, the “security dimension” claim raises several questions, such as whose security? What is security? And do nuclear weapons provide security or undermine it? “Nuclear deterrence requires the threat of massive nuclear violence,” Shorna-Kay Richards of Jamaica pointed out. Referencing the Austrian paper, she argued that the humanitarian approach does not ignore the security dimension of nuclear weapons, but rather puts security at the heart of the debate. Similarly, Mexico’s Ambassador Lomonaco noted that the OEWG is a UN General Assembly body and therefore collective security is the appropriate framework under which to examine ways forward.

Moving forward

The ongoing debate at the OEWG, NPT, First Committee, and Conference on Disarmament have clearly demonstrated that moving forward constructively to fill the legal gap for the prohibition and elimination of nuclear weapons requires an approach that does not rely on nuclear-armed or nuclear-supportive states’ leadership. The political viability for progress on nuclear disarmament, argued Brazil, lies with capacity of non-nuclear-armed states to lead the way. These states are no longer willing to accept the status quo, declared Jamaica. The circuitous debate and stalling tactics are thinly veiled attempts to prevent progress on nuclear disarmament, while the humanitarian initiative has given non-nuclear-armed states urgency and agency.

Ridding the world of nuclear weapons will take courage. It will take leadership by states free of nuclear weapons. But it is achievable, feasible, and practical. It can be crafted in such a way to establish a comprehensive set of prohibitions and provide a framework under which the elimination of nuclear weapons can be pursued. And it is necessary. At a time when the nuclear-armed states continue to demonstrate their lack of commitment to pursuing tangible, good faith nuclear disarmament, as international tensions rise and nuclear weapons lurk in the background behind the use of military force, and as the potential for accidents or use persists, banning nuclear weapons is an urgent necessity.

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