Law and morality at the Vienna conference on the humanitarian impact of nuclear weapons

From 28 February–1 March 2015, Ray Acheson, Director of Reaching Critical Will, participated in a symposium hosted by the Helen Caldicott Foundation on "The Dynamics of Possible Nuclear Extinction". She moderated the second day of the symposium and also delivered opening remarks to report back on the Vienna conference on the humanitarian impact of nuclear weapons. An archived video of her presentation, and the rest of the conference, is available online.

The Vienna conference on the humanitarian impact of nuclear weapons was the third in a series of international meetings that set out to illuminate and refine our understanding of the devastating effects of nuclear weapons.

These conferences have collectively provided irrefutable evidence about the devastating consequences and risks of the use of nuclear weapons. They have also given voice to international organizations and UN agencies, which have emphatically reported that they would not be able to able to effectively respond to the use of nuclear weapons.

The Vienna conference added new dimensions, including survivor testimonies from testing victims, a closer examination of risks, and most importantly, an exploration of the moral, normative, and legal frameworks governing nuclear weapons.

You can find the presentations from the fact-based panels online at www.reachingcriticalwill.org, along with many government statements.

While these presentations are extremely important, what I want to focus on in my remarks right now is the conference’s look at the moral, ethical, and legal dimensions of nuclear weapons.

In his presentation during the final panel at the Vienna conference, Nobuo Hayashi from the University of Oslo noted that the law does not address the legality of nuclear weapons in the way it does biological and chemical weapons. “It is as though we can strangulate this beast from all directions, but not quite strike directly at its heart.”

Some governments have repeatedly questioned this distinction among the weapons of mass destruction. At the Vienna conference, the Irish delegation asked, why should nuclear weapons be viewed as somehow more “necessary,” “legitimate,” or “justifiable” than other WMD? “Is that because of a belief in their value as a deterrent? Then why has this deterrent failed to prevent conflicts breaking out in various regions in which the parties directly or indirectly involved have nuclear weapons in their arsenals?”

Nuclear deterrence took a hit at the Vienna conference, with most states reiterating long-held views that nuclear weapons bring insecurity and instability, not safety and protection. Only a handful of states argued that nuclear weapons provide some “security benefit” that must be taken into account when considering legal or policy options.

(The UK has recently taken up this argument very strongly, which is an argument FOR proliferation—but they don’t seem to care about that...)

Yet despite the consistent and overwhelming objections to the concept and practice of nuclear deterrence, human society has still failed to establish law prohibiting and setting out a framework for the elimination of nuclear weapons the same way it has for biological and chemical weapons. Why?

It is not because nuclear weapons have some sort of inherent, magical value that other WMD do not have. It has much more do with the way nuclear weapons are positioned within the political-military-academic-industrial nexus than anything else. Any “magic” these weapons are perceived to possess has been falsely granted to them by those who benefit from them materially or politically. But like all magic, the illusion can be unmasked and its power taken away.

An important step in unveiling the truth about nuclear weapons could be through unleashing our “moral imagination”. Dr. Hayashi suggested that we have been imprisoned by arguments for or against nuclear weapons that are built on an “ethics of outcome”. That is, we tend to look at the consequences of the use of nuclear weapons and decide whether or not the ends justify the means. Instead, we might start looking at the suffering nuclear weapons cause as “suffering per se, rather than suffering that is necessary or unnecessary for this or that purpose.”

He drew upon the shift in thinking about torture as a precedent for this approach, arguing that “most of us now agree that torture is a moral wrong in itself, and that under no circumstances do outcome-based claims ever justify it.” Fittingly, the CIA torture report was released in the United States the same day Dr. Hayashi gave his presentation in Vienna. The massive outcry in the US and beyond indicates that despite continued justifications by certain people, the findings have been condemned as abhorrent and unacceptable by the majority of the world.

Would the reaction be the same if nuclear weapons were to be used again today? While the users might claim they had the right and the responsibility to wreak the havoc and devastation promised by nuclear weapons, would the rest of the world really accept it?

Lithuania’s delegation remarked that the testimonies of survivors have become a powerful moral deterrent against any use of nuclear weapons. The voices of survivors from Australia, Japan, Kazakhstan, the Marshall Islands, and the United States at the Vienna conference indeed could not be denied. Even the US delegation, after a rather callous delay, thanked those who brought personal testimonies to the conference.

But will these voices deter? Will they deter use? Can they deter the threat of use? Possession?

If we cannot conceive of accepting the use of nuclear weapons and the suffering it will bring, how can we accept the ongoing practice of nuclear deterrence? How can we accept that the use of these weapons is written into “security” doctrines of states? That they are deployed, on alert, ready to use? That they still exist, in any hands?

At the end of the conference, the Austrian government delivered both a Chair’s summary and also a Pledge.

One of most important points in the Chair’s summary was that the suffering caused by nuclear weapons use necessitates both legal and moral appraisals; and that a comprehensive legal norm universally prohibiting nuclear weapons is currently missing.

The Chair’s summary also reflected the views of states conveyed during the general debate, including that many delegations “expressed support for the negotiation of a new legal instrument prohibiting nuclear weapons”.

Austria also presented a Pledge at the end of the conference, which highlights the conviction that efforts are needed to stigmatise, prohibit, and eliminate nuclear weapons and says that Austria will pursue measures to “fill the legal gap” for prohibiting and eliminating nuclear weapons.

ICAN believes that the best way to fill it in the current context is with a treaty banning nuclear weapons. Tim will talk about this later this afternoon. I can preface his talk by saying this is the most exciting initiative I’ve work on yet, and it is happening!

But we cannot just fill this gap with law alone. One of the biggest challenges with nuclear weapons is that existing law is being circumvented. If the NPT was being implemented, we would not have nuclear sharing arrangements and the nuclear-armed states parties would be engaged in multilateral negotiations for the elimination of their arsenals. To give the law power and resilience we must also fill the gap with morality, compassion, responsibility, and accountability.

Vienna gave us a starting point. It gave us a Pledge to pursue a legal prohibition on nuclear weapons. But it also gave us a way forward in reconstructing how we think about and approach nuclear weapons.

At the conference, the overwhelming majority of governments condemned the possession of nuclear weapons and insisted that they must never be used again under any circumstances. It’s time they take action to make sure of this.

Austria invited other states to sign on to the Pledge. So far, at least 40 have done so and many more have indicated they intend to do so. This is the most exciting opportunity we have to deal with these weapons once and for all. We must seize it and ban nuclear weapons now.