Tag Archive for: nuclear ban treaty

Nuclear norms and the UN ban treaty

On 7 July, 122 states voted to adopt a new Treaty on the Prohibition of Nuclear Weapons. It articulates the world’s collective revulsion at the humanitarian consequences of the use of nuclear weapons, under any circumstances. The foreseeable effects of use in the indeterminate future make the possession of bombs today morally unacceptable to the international community. The treaty’s primary intent 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 latter group boycotted the conference and have rejected the treaty. No weapons will therefore be destroyed. Supporters insist that, even so, the treaty will have an impact on key global nuclear norms. With 50 ratifications to bring the treaty into force, the normative effect may be limited at first, but it will begin to strengthen once the number of parties crosses the psychological threshold of 100. It will gain further weight if some of the key NATO and Pacific allies (Canada, Norway, Japan, Australia) defect from the rejectionist camp and sign.

In regulating state conduct, both laws and norms serve enabling (licence) and restraining (leash) functions. Norms are understood differently by lawyers and political scientists. Legal norms impose binding legal obligations. Political norms create moral obligations. But the latter can still be encased in a wider legal context and have legal effects. The history of human rights movements (suffrage, anti-slavery, anti-apartheid) shows that, while the social movements are motivated to enact moral norms into law, the moral authority of the norms by themselves exert a powerful ‘compliance pull’.

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 1968 Nuclear Non-Proliferation Treaty. 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. One common explanation for the non-use of nuclear weapons since 1945 is that the nuclear powers feared assured mutual destruction. An alternative explanation is that the normative taboo against the use of nuclear weapons is so strong that on several occasions they accepted defeat in places like Vietnam and Afghanistan rather than use the bomb to destroy their enemies. Lately, technological developments have begun to blur the dividing line between conventional precision munitions and nuclear weapons. The ban treaty will harden the normative boundary between conventional and nuclear weapons.

Nuclear weapons obliterate the distinction between combatants and civilians that is central to every moral code in all cultures and civilisations. Most countries have chosen nuclear abstinence because people overwhelmingly abhor the bomb as deeply immoral. On 3 July, the ban treaty conference president, Ambassador Elayne Whyte Gomez of Costa Rica, said: ‘Each one of us has assumed the historic responsibility to give humankind an instrument that reflects the moral imperative of prohibiting nuclear weapons and leading to a future free of nuclear weapons.’ The treaty’s preamble reaffirms that ‘any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience’.

Another critical legal gap that has been closed is the threat of use of nuclear weapons. Arguably, such a prohibition is already covered under the general prohibition on the use or threat of use of force in Article 2(4) of the UN Charter. The political reality, however, is that threats to use force are a regular staple of world affairs (‘All options are on the table’). Given the current state of nuclear politics, the inclusion of an explicit prohibition on the threat of use of nuclear weapons fills a legal gap.

In addition to reinforcing the norms of non-possession, no testing and no first use, the ban treaty’s prohibition on the use and threat of use undermines the contrary norm of nuclear deterrence. The main objection of the possessor states to the treaty, and the worry of many independent analysts, is that it will have the perverse effect of undermining nuclear peace and perhaps triggering major-power war. The worry is especially acute at a time of an exceptionally adverse international security environment.

The nuclear powers have institutionalised deterrence as a permanent national security doctrine. By contrast, the ban treaty begins with the unequivocal stigmatisation of the possession, use and threat of use of nuclear weapons. Because it is a UN-approved treaty resulting from a mandated multilateral conference, it gives authoritative legal underpinning to the civil society–led stigmatisation of nuclear weapons. Anti-nuclear advocates in all the possessor and umbrella countries can draw on its legitimacy to alter the prevailing domestic normative context that shapes how people think about and act in relation to nuclear weapons. Arms control advocates will demand that the nuclear-armed states take the necessary steps to create the more favourable security conditions that will reduce nuclear risks and facilitate practical nuclear arms control and disarmament measures.

A good analogue for the potential normative effect of the nuclear ban treaty is the Ottawa convention that banned landmines. Few today would deny that it has shaped the behaviour even of non-signatories. And 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.

Supplementing the nuclear ban treaty: a constructive way forward

Rod Lyon (‘The Nuclear ban “pledge”: how’s it tracking?’) is predictably underwhelmed by the idea of Australian parliamentarians pledging their support for the recently concluded Nuclear Weapons Prohibition Treaty (NWPT). He and I have totally contrary views on the deterrent utility of nuclear weapons, with my own long-argued view (see, for example, here) being that, in today’s world, the risks associated with anyone retaining them far outweigh any possible security reward. While I love the idea of a nuclear weapons–free world, Rod believes that there lie beasties.

That said, I think there’s a more productive course for Australian parliamentarians to follow than simply campaigning enthusiastically for the new ban treaty. The prohibitions it embodies set important normative goals, which are eminently worth supporting, but the treaty isn’t drafted in a way that will help us practically advance those goals anytime soon. What is needed now is an initiative—which I fear may be beyond any Coalition government, but hopefully will be picked up by a Labor successor—to give real practical content to the kind of step-by-step disarmament agenda to which the nuclear-armed states, and their allies and partners, always say they are committed but have done absolutely nothing so far to advance. I spelled out the limitations of the ban treaty, and what such a new initiative might involve, in the Waiheke Global Affairs lecture (full text here) delivered in New Zealand earlier this month, from which the following is an edited extract.

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There are four basic reasons why the new NWPT, as it currently stands, is not going to directly produce any practical, operational arms control results anytime soon, or maybe ever. First, its safeguards provisions: weapons states aren’t likely to be encouraged to relinquish their weapons when by doing so they will be held to a higher standard than non-weapons states (including potential proliferators like Egypt and Saudi Arabia that haven’t committed to the strongest form of safeguards, the IAEA Additional Protocol). Second, it is very light on the crucial question of verification—that’s for a competent international authority to be designated in due course by the states parties. Third, it is silent on the even more crucial question of enforcement—understandably enough, because the issue of how to respond to a rogue state breakout in a nuclear weapons–free world is one to which no one has at the moment even a conceptually credible solution. And fourth, the provision that nuclear-armed states joining the treaty must submit to a time-bound program for the complete and irreversible elimination of their stockpiles isn’t likely to be very attractive to those states that are nervous about going to zero while others still have nuclear weapons.

But none of this means that its negotiation has been a waste of time, or in any way counter-productive. The idea of the ban treaty—and the humanitarian consequences movement from which it was born—has already generated real normative momentum, and will continue to do so. Global stigmatisation, delegitimisation and the will to prohibit nuclear weapons may not be sufficient conditions for their elimination, but they are necessary conditions. And whether the nuclear-armed states like it or not—and whether Australia and others thinking themselves sheltered under their nuclear umbrella like it or not—that is the mood that’s out there in the rest of the world.

That said, I think those of us who are passionately in favour of nuclear disarmament need to do something more than just campaign passionately to raise the profile of the NWPT and to secure the maximum number of adherents to it. That approach may be working well with the Ottawa and Oslo treaties on land mines and cluster bombs, where—despite a number of significant states holding out against their abolition—the normative consensus against them continues to consolidate and grow to the extent that it’s possible to imagine achieving in the not too distant future a world in which these weapons are simply no longer used. But the stakes are much higher with nuclear weapons—given their existential destructive power, the psychological commitment to their retention by so many of the nuclear-armed states, and the fear that each of them has that even if they go collectively to zero they will be vulnerable to rogue-state breakout in the absence of effective verification and enforcement machinery. It is just not credible to think that the NWPT, by itself, can get us to where we want to go.

My own preference would have been for a treaty, or treaty-making process, that—while being as clear as this one is about the ultimate destination—acknowledges the reality that the elimination of nuclear weapons is only ever going to be achievable on a step-by-step basis, and builds into its present all-or-nothing fabric a series of way stations. The nuclear-armed states and those who travel with them are right to say that only a step-by-step approach can ever produce results. But they lose all credibility when they extol that approach, but then do absolutely nothing to indicate that they are even contemplating taking any steps at all—which is the current reality.

There is a way forward on all this, and it was mapped with some precision by the International Commission on Nuclear Non-Proliferation and Disarmament initiated by Australia and Japan, which I co-chaired eight years ago with former foreign minister Yoriko Kawaguchi. We argued that progress could only be made by recognising two distinct stages, first ‘minimisation’ then ‘elimination’, with some inevitable discontinuity between them, because of the reality, when it comes to moving from low numbers to zero, that there are not only psychological barriers and geopolitical barriers in the world as we can envisage it for the foreseeable future, but there are serious technical barriers of verification and enforcement as well.

So we urged that initial efforts be focused not on elimination but on what we described as the ‘minimisation’ agenda—reducing overall numbers to around 2,000 (compared with the 15,000-plus now in existence), getting universal buy-in to ‘no first use’, and giving that credibility by taking weapons off high alert and drastically reducing the number of those actively deployed. All of this, we argued, was achievable over a 15-year or so timeframe with the right political will. We did not resist the idea of commencing negotiation now on a comprehensive ‘nuclear weapons convention’ that would provide for the outright banning of all nuclear weapons. But given the great many technical, as well as political, obstacles involved in moving from low numbers to zero, we thought that it would take many years to negotiate a disarmament regime that the nuclear-armed states would buy into—and that it would be more productive, accordingly, to focus efforts on achieving the minimisation targets rather than producing the kind of ‘campaign’ treaty that the NWPT now represents.

While achievement of our minimisation objective by around 2025 seemed possible in the international environment of 2009, it unhappily looks much more elusive now. But I still believe that going back to the hard grind of step-by-step arms control negotiations, both bilateral and multilateral, is the only path to a safer and saner nuclear world. A world with very low numbers of nuclear weapons, with very few of them physically deployed, with practically none of them on high-alert launch status, and with every nuclear-armed state visibly committed to never being the first to use nuclear weapons, would still be very far from being perfect, and no one should even think of settling for that as the end point. But a world that achieved those objectives would be very much safer and saner than the one we live in now.

The campaign that’s most needed now from those who want to rid the world of nuclear weapons is to get governments to commit to the minimisation agenda I’ve described and to participate seriously in negotiating a new treaty regime—sitting alongside and complementing the NWPT, or eventually replacing it—that would facilitate that minimisation process as well as enable the world ultimately to move from low numbers to zero. The time to initiate such a new treaty-making exercise would be the high-level UN conference to review progress on nuclear disarmament announced for May 2018. Of course, it would be optimal if the parties leading this new charge included not only those who have worked so hard to produce the NWPT, but at least some of the nuclear-armed states, and those sheltering under a nuclear umbrella (such as Australia and Japan), who have been missing in action so far.

A new, more complicated and more nuanced treaty—or sequenced set of treaties—might not have the visceral, emotional appeal of the simple outright bans embodied in the NWPT. But I suspect this approach might help us get rather faster to where we all need to go.

The nuclear ban ‘pledge’: how’s it tracking?

Over recent months, the International Campaign to Abolish Nuclear Weapons (ICAN) has been attempting to sign up Australian parliamentarians to a pledge of support for Australia’s signature and ratification of the nuclear ban treaty. And with the steady drumbeat of a possible showdown over a nuclear-armed North Korea playing in the background, it should have had no problems in finding more than a few true believers among the ranks of current politicians. So, just how well is ICAN doing in its pledge campaign?

As of last Friday—10 November—ICAN listed 65 pledges from Australian parliamentarians. That total comprises 22 senators and 43 members of the lower house. But remember that (on a good day) there are 76 senators and 150 MPs. So 65 out of 226 actually equates to 29%. Not a bad start, perhaps, but so far not a winning coalition.

Still, let’s look more closely at the pledgers and tease out their party affiliations. Of the 65, the great bulk—by far—come from the Australian Labor Party and the Greens. In fact, 52 of the 65 are ALP parliamentarians, and another 8 are Greens. That accounts for 60 of the 65; two from the NXT (Skye Kakoschke-Moore and Stirling Griff), one from the Liberal Party (Warren Entsch), one from the Nationals (Ken O’Dowd) and one independent (Andrew Wilkie) round out the full list.

Those 52 ALP signatories are a worrying sign of troubled times ahead: there are only 69 Labor MPs and 26 Labor senators, so 52 out of a possible 95 supports ICAN’s claim that it has secured pledges from a majority of Labor parliamentarians. And that suggests we might be about to witness a struggle for the nuclear soul of the Labor party somewhat akin to the one that unfolded in the 1980s.

If so, those in favour of signing up Australia to the nuclear ban treaty still have some work to do. For one thing, they’re under-represented on the current front bench. Among the shadow ministry, only 8 of the 22 shadow ministers have signed. That’s about 36%. The signatories are Tanya Plibersek, Katy Gallagher, Tony Burke, Jenny Macklin, Anthony Albanese, Joel Fitzgibbon, Catherine King and Julie Collins. There are some well-known names there, but none of them hold security-related portfolios. Penny Wong, Richard Marles, Amanda Rishworth, Mark Dreyfus and Shayne Neumann (respectively, shadow ministers for foreign affairs, defence, defence personnel, attorney-general, and border protection) haven’t signed.

If we broaden the definition of the shadow ministry to include the outer shadow ministry and parliamentary secretaries, the ‘pledgers’ do slightly better. Now 22 have signed out of a possible 47—about 47%. Gai Brodtmann and Mike Kelly (respectively, shadow assistant ministers for cyber security and defence personnel, and for defence industry and support) haven’t signed.

If there’s any solace to found in ICAN’s list of pledges, it comes not from the bare list itself but from the tempo of commitment, if I can call it that. Peak pledge has probably passed. Parliamentarians were signing up reasonably rapidly in August and September, but—judging from ICAN’s tweets—the tempo seems to be slowing. In short, most of those amenable to ICAN’s arguments have already signed.

True, the ALP’s probably still being buffeted by a wave of populist anti-nuclear forces similar to that besetting its British counterpart—where Jeremy Corbyn has roused the party’s anti-nuclear wing (stronger outside the parliament than inside it) to new levels of engagement. But Shorten’s no Corbyn. And ALP party hardheads must know that any decision by a future Labor government to sign the nuclear ban treaty would have an immediate impact upon the US-provided extended nuclear assurance that Australia currently enjoys—and, more broadly, upon both ANZUS and the wider bilateral relationship with Washington. Such a decision would also flow over into Australia’s relations with other US allies, many of whom—in Northeast Asia and Europe—are working hard to strengthen such assurances, not to abandon them.

Around the world, nuclear challenges to the West are increasing, not decreasing. There is—probably—a path to eventual nuclear disarmament. But, as Lewis Dunn has written, ‘the road to physical elimination runs inexorably through strategic elimination’. Nuclear weapons were built for a strategic purpose—to bring to an end the most destructive world war in history and reduce the prospects of further major-power war—and they continue to fulfil that purpose today. So we’re nowhere near strategic elimination at the moment. That means Australia’s interests are best served by working to strengthen the current global nuclear ordering project, which is based on complementary systems of deterrence and abstinence. The ban treaty doesn’t do that. Pledging support is a poor choice for our parliamentarians to make.