The Nuclear Weapon Prohibition Treaty – Prof. Ramesh Thakur

For half a century, the normative anchor of the global nuclear order has been the Nuclear Non-Proliferation Treaty (NPT). On 27 October 2016, the First Committee of the United Nations General Assembly adopted, by a landslide 123-38 vote (with 16 abstentions), Resolution A/C.1/71/L.41 that called for negotiations on a ‘legally binding instrument to prohibit nuclear weapons, leading towards their total elimination’. This was followed by a vote in the full General Assembly on 23 December passed by an equally solid 113-35 majority. The resolution fulfilled the 127-nation humanitarian pledge ‘to stigmatise, prohibit and eliminate nuclear weapons’. The UN-mandated conference met in New York on 27–31 March and 15 June–7 July 2017. On 7 July, 122 states voted to adopt a new Nuclear-Weapon Prohibition Treaty (NWPT). It was opened for signature in the UN General Assembly on 20 September 2017. The treaty will come into effect 90 days after fifty states have ratified it. As of 30 September 2018, 19 countries had ratified the treaty and 60 had signed it.

The adoption of the NWPT marked the most significant multilateral development on nuclear arms control since the indefinite extension of the NPT in 1995 and the adoption of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) in 1996, if not the negotiation of the NPT itself 49 years earlier in 1968. It aims to fulfil the dream of a world freed at last of the existence of nuclear weapons that constitute an existential threat to humanity. Revived for a shining moment by President Barack Obama in Prague in 2009, the noble dream has steadily faded since then.

A Historic Treaty

The NWPT has its technical flaws and even its advocates concede it will have no operational impact as all nuclear-weapon possessing states have stayed away. Even so, it is historic on several counts.

It is the first treaty to prohibit the acquisition, development, production, manufacture, possession, transfer, receipt, testing, hosting, use and threat of use of nuclear weapons. It thus completes the legally binding prohibition of all three classes of weapons of mass destruction, with biological and chemical weapons having been banned by universal conventions in 1972 and 1993 respectively. Unlike the new treaty which applies equally to all signatories, the NPT granted temporary exemptions for the continued possession of nuclear weapons by the five nuclear-weapon states (NWS) that already had them in 1968, but banned their proliferation to anyone else. Like the NPT, however, the NWPT is legally binding only on signatories.

Second, this is the first occasion on which states on the periphery of the international system have adopted a humanitarian law treaty aimed at imposing global normative standards on the major powers of the system and the Euro–Atlantic community. The major principles of international, humanitarian and human rights laws have their origins in the great powers of the European international order – an order that was progressively internationalised in the nineteenth and twentieth centuries. Ban treaty supporters include the overwhelming majority of states from the global South and some from the global North (Austria, Ireland, New Zealand, Switzerland). The treaty’s opponents include all nine nuclear-weapon possessing states (five NWS plus India, Israel, North Korea, and Pakistan), all NATO allies, and Australia, Japan and South Korea. Thus, for the first time in history, the major powers and most Western countries find themselves the objects of an international humanitarian treaty authored by the rest who have framed the challenge, set the agenda and taken control of the narrative.

Third, this is the first occasion in the UN system when the General Assembly, where all 193 Member States have one vote, has defied the P5, which is particular significant as it relates to national security. The majority of states have reclaimed nuclear agency and were determined to proclaim a more powerful and unambiguous prohibition norm.

Why the Ban Treaty Was Needed

The impetus behind the NWPT was growing consciousness of rising nuclear dangers, frustration at stalled nuclear arms control negotiations, and exasperation at the dismissive attitude of the NWS towards their legal disarmament obligation. The normative prop for the new initiative was humanitarian principles.

From the dawn of the nuclear age in 1945, activists, NGOs, governments and the UN have been relentless in putting in place planks of an increasingly rigorous normative architecture to limit firstly, the spread of nuclear-weapon technology, materials and arsenals, and secondly the circumstances in which these terrible weapons might be used. As the graphic horrors of Hiroshima and Nagasaki seeped into the public consciousness, more and more people were awakened to the reality that nuclear weapons are the most indiscriminately and inhumane, as well as the most destructive, weapons ever invented. They obliterate the distinction between combatants and civilians. They cannot be just war-compliant with regard to the requirements for proportionality, civilian-combatant distinction and no unnecessary suffering. Their very existence is a threat to the survival of all humanity because of the built-in risks of use by design, accident or system error.

Nine countries possess nearly 15,000 nuclear weapons. All are engaged in nuclear modernisation, growth in warhead numbers, or continued testing. Nuclear risks have grown also with the rise in geopolitical tensions in several high-risk theatres involving nuclear powers in eastern Europe, the Middle East, South Asia, the Korean Peninsula and the South China Sea. Two-thirds of the NPT parties believe that nuclear threats have intensified and multiplied because existing policies have failed to mute them amidst a uniquely dangerous period in the atomic age. They voted for the NWPT because of an exceptionally high degree of disquiet with the continued existence of nuclear weapons and accompanying doctrines of use. Moreover, for the first time since the 1960s, independent nuclear weaponization is being proposed for the European Union, Germany, Australia, Japan, and South Korea, contributing to the nuclearisation of the 21st century. The discomfort level has increased over the last four years with the growing normalization of the discourse of nuclear-weapon based national security policies and found expression in the adoption of the NWPT.

The nuclear powers’ arsenals, modernisation plans, doctrines and deployment practices contradict the NPT Article VI obligation to eliminate nuclear weapons through negotiations. In 1996 the International Court of Justice advised, unanimously, that ‘There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’, (emphasis added). The NWPT conforms to this obligation and attempts to give practical expression to it.

For nuclear peace to hold, deterrence and fail-safe mechanisms must work every single time. For nuclear Armageddon, deterrence or fail safe mechanisms need to break down only once. Deterrence depends on rational decision-makers at a time when two of the leaders with fingers on the nuclear button are Donald Trump and Kim Jong-un. Nuclear peace depends also on no rogue launch, human error or system malfunction. As more states acquire nuclear weapons, the risks multiply exponentially with requirements for robust command and control systems in all, 100 per cent reliable fail-safe mechanisms and procedures against accidental or unauthorised launch of nuclear weapons, and unbreachable security measures against terrorists getting nuclear weapons. This is an impossibly high bar.

Objections to the NWPT were mostly a failed tactic to delay abolition indefinitely. The nuclear-armed and umbrella states confess to believing in abolition, but only as the ‘ultimate goal’. This calls to mind St Augustine’s prayer: ‘Lord, make me chaste. But not just yet’. The nuclear powers have done their utmost to deny there is any binding legal obligation under the NPT to abolish the bomb within a foreseeable timeframe. Having taken that stand in principle and backed it in practice by keeping, enlarging and modernising substantial nuclear-weapon stockpiles, they had few takers for the argument that the world should not act to fill the existing legal gap.

Normative Impact

The NWPT embodies the collective moral revulsion of the international community. Because of the nuclear-armed states’ non-cooperation, it will have no immediate operational effect. But because it is a UN treaty adopted by a duly constituted multilateral conference, it will have normative force. It will reshape how the world community thinks about and acts in relation to nuclear weapons and those who possess the bomb. Its primary intended purpose is to stigmatise nuclear weapons through a legally binding prohibition instrument in order to induce movement towards nuclear disarmament by the bomb-possessing countries. The foreseeable effects of use anytime in the future make the doctrine of deterrence and the possession of nuclear weapons morally unacceptable in the present. Criticism of the NWPT as ineffective in eliminating warheads is fundamentally misconceived: it confuses normative impact of a prohibition treaty with operational results of a full-fledged Nuclear Weapons Convention. It will complement and not undermine the NPT and should provide an impetus to efforts to a Nuclear Weapons Convention that is universal and verifiable.

Treaty supporters and opponents are united in reaffirming the existing norms against nuclear proliferation and testing. It will also be deployed by supporter states and civil society advocates as evidence of a new global political norm against possession. In addition, the ban treaty’s legal effect will lie in strengthening the disarmament norm under Article VI of the NPT. It removes the NPT-based legal and legitimising plank for continued possession, deployment and doctrines of use by the nuclear powers. Meanwhile the no-first-use norm, buttressed by consistent and widespread state practice, is arguably a mandatory norm. Lately, technological developments have begun to blur the dividing line between conventional precision munitions and nuclear weapons. The NWPT will harden the normative boundary between conventional and nuclear weapons.

Another critical legal gap that has been closed is the threat of use of nuclear weapons. In turn this undermines the contrary norm of nuclear deterrence. That is the main objection of the possessor states. The nuclear powers have institutionalised deterrence as a permanent national security doctrine. By contrast, the NWPT gives authoritative legal underpinning to the civil society-led stigmatisation of nuclear weapons. A good forerunner of the potential normative impact of the nuclear ban treaty is the Ottawa convention that banned landmines. Few today would deny that it has shaped the behaviour of non-signatories, while several countries that strongly opposed it when it was mooted and adopted, including Australia, were persuaded to sign by the force of domestic and international opinion against the limited real-world utility of the mines.

A Forward Looking Agenda

The forward-looking nuclear disarmament agenda includes five components. Of these, three can be implemented only by the nuclear-armed states: cap and contain nuclear arsenals; reduce warhead numbers, reliance on nuclear doctrines, deployments, and provocative postures like launch-on-warning; and eliminate nuclear weapons entirely. But the other two can be pursued by the non-nuclear-weapon states: stigmatise and delegitimise the bomb; and prohibit its use or possession using a new, unequivocal legal framework like an international treaty. Last year’s historic UN decision to adopt the NWPT adds to global efforts to delegitimise nuclear weapons, contain and reverse their spread, and begin the process of first banning and then eliminating them and dismantling their infrastructure. A legal ban will further reinforce the normative boundary between conventional and nuclear weapons, strengthen the norm of non-use of nuclear weapons, and reaffirm both the non-proliferation and disarmament norms. For all these reasons, the NWPT will be a useful building block for an eventual Nuclear Weapons Convention.

Professor Ramesh Thakur of the Australian National University is Co-Convenor of the Asia–Pacific Leadership Network for Nuclear Non-Proliferation and Disarmament. His article in The Washington Quarterly (Winter 2018) that highlights the normative force of the ban treaty can be found here.