Nuclear Ban Daily, Vol. 2, No. 3

Political messages and prohibitions
19 June 2017

Ray Acheson

What do we want from a treaty banning nuclear weapons?

This is the most important question when considering both the preamble and the prohibitions, as delegates did on Friday. It will also be imperative when it comes to the provisions related to the elimination of nuclear weapons, which negotiators will consider this week. While the answer may seem obvious—we want the prohibition of nuclear weapons as a means to achieve their total elimination—there are nevertheless different understandings of what that means and how to best accomplish it.

The atmosphere in the negotiating room is constructive and dynamic, with delegations supporting and building off of each other’s suggestions, or engaging in debate about the merits of particular proposals. However, there is also a sense that different agendas are afoot. For some states, a crisp preamble setting out the objectives and political message of the treaty, followed by strong, clear, and meaningful prohibitions, seems to be the goal. Others appear to be approaching this treaty as they do UN General Assembly resolutions—as a text to set out their frustrations and their general commitments to disarmament. Some explicitly want to have a concrete impact on the activities and policies that facilitate the maintenance of nuclear weapons, while others seem to hedge away from that objective, not wanting to add too many elements that would necessitate change in their own or other states’ behaviour.

These competing agendas mean that the draft text is currently being pulled in various directions. This is bound to happen in negotiations, especially in a setting with well over 100 participants. This is an incredibly open and inclusive negotiating process, but this means that states that truly want this treaty to have an impact on current practices and help lead to the elimination of nuclear weapons need to figure out, together, how to advance the text in this direction.

The preamble contains the overarching political message of the treaty. As such, it’s extremely important, as Ireland’s delegation said on Friday, not to inflate it so much that it dilutes that message. There are a few essential items that should be included in this part of the text—such as stronger language on gender and the environment; a recognition of the humanitarian impacts of nuclear weapons on indigenous communities; and references to human rights and education. Such elements should be streamlined within the existing text and not be burdened by the further addition of language that is not directly related to the treaty’s core objectives. This is not a UN resolution and must not be treated as one. For purposes of credibility and clarity, it should only take on board those adjustments that are absolutely necessary to orient the treaty as a humanitarian disarmament instrument grounded in human rights and environmental justice.

When it comes to the prohibitions, we need to focus on those that will reinforce existing norms and obligations and that will affect current nuclear weapon practices and policies.

Among other things, this means maintaining the prohibition on testing—which Sweden and Mexico, and possibly others, want to delete. Their argument is that we already have the Comprehensive Nuclear-Test-Ban Treaty (CTBT). However, the CTBT has not yet entered into force. Thus prohibiting testing in the ban treaty—as it has been prohibited in all of the regional nuclear weapon free zone treaties—would serve to reinforce and strengthen the norm against nuclear weapon testing. It will also help to strengthen efforts for maintaining the funding and legal authority for the CTBT Organisation’s verification regime, which consists of over 300 monitoring facilities around the world that are already in operation.

As the ban treaty builds upon and deepens global norms against the existence and maintenance of nuclear weapons, the prohibition on testing will be an important element of demonstrating the renunciation of nuclear weapons. Omitting testing from the prohibited activities in the ban treaty could leave a crucial gap in the treaty’s core prohibitions that will be instrumental in preventing future development or reconstitution of nuclear arsenals.

In addition to maintaining the prohibition on testing and the other activities already included in the draft text, two other sets of activities should be prohibited as a means to impacting the practices of nuclear deterrence that currently are used to “justify” the retention of nuclear weapons by the United States and others. These include a prohibition on planning and preparations to use nuclear weapons; and an obligation on states parties not to permit transit of nuclear weapons through their airspace or territorial waters, or to permit visits to their ports or airfields of ships or aircraft carrying nuclear weapons.

Existing nuclear alliances and bilateral relations vary in terms of the level of cooperation and coordination in planning and preparation activities. Any related activities—such as planning operations (strike plans, training, exercises), policy (declaratory policy, strategy), and infrastructure (installations, functions—are not be compatible with a prohibition on nuclear weapons. This should be made explicit in the treaty.

Furthermore, nuclear weapon deployment and preparations to use of nuclear weapons may entail the transit of such weapons through others’ airspace and waters. Ending the possibility of nuclear forces to be temporarily present in or to transit through national territory and airspace could curtail some avenues in which nuclear-armed states are able to engage in nuclear brinkmanship. It could also end a means by which non-nuclear-armed states can assist nuclear weapon programmes by facilitating training activities of nuclear-capable military units. Thus prohibiting transit of nuclear weapons may be one of the few ways in which non-nuclear-armed states can most effectively impact operational practice related to the unfettered global exercise of “extended nuclear deterrence”.

On Friday, a large number of states supported the addition of a prohibition on “military preparations to use nuclear weapons”. Several have also indicated support for language on transit. Austria raised concerns about prohibiting transit in this treaty, arguing that states cannot be expected to know the contents of every single shipping container brought into its territory. But as the delegation of Ecuador pointed out, the Convention on the Physical Protection of Nuclear Materials (1979) obligates states parties to “not allow the transit of its territory by land or internal waterways or through its airports or seaports of nuclear material.” Ecuador asked, if states can be expected to not permit the transit of nuclear material why could they not be expected to do the same for nuclear weapons?

Similarly, it’s worth pointing out that UN Security Council resolution 1540 (2004) already obligates states to “develop and maintain appropriate border controls and law enforcement efforts” and to “establish, develop, review and maintain appropriate effective national export and trans-shipment controls” in order to “detect, deter, prevent, and combat” the proliferation of “nuclear, chemical, or biological weapons and their means of delivery”. In this sense, including an obligation for states to not permit transit or port visits of nuclear weapons would seem to be consistent with and reinforce existing non-proliferation obligations.

There are a lot of moving parts in these negotiations. Many ideas sound constructive and helpful, and are offered in good faith. But they must be considered against the overarching objective of impacting current nuclear weapon practices and policies that facilitate or are used to “justify” the maintenance of these heinous radioactive weapons of genocide. This week states and others participating in these negotiations will consider the rest of the draft treaty text; keeping in mind what is best for the treaty rather that various political agendas is paramount to achieving a credible, resilient, and effective legal instrument by 7 July.

What is happening here inside the UN is not happening in a vacuum. On Saturday, about a thousand activists turned up in torrential downpour to march from Bryant Park to the United Nations in the Women’s March to Ban the Bomb organised by the Women's International League for Peace and Freedom. People around the world—in at least 200 locations—supported this event with marches, vigils, teach-ins, or poster-making activities. All support the nuclear ban treaty and are looking to governments participating here in New York to match their passion and commitment in helping to reach a nuclear weapon free world. The back page of this edition of the Nuclear Ban Daily has more information and photos from the march in NYC, and more images from around the world are being shared online at #womenbanthebomb. What happens in the UN will have a meaningful impact on lives around the world, and on our shared future. The world is watching.

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