About a ban: dismantling the idea of a ban on nuclear weapons

ILPI Publications > Policy Papers

Assessing the viability of a comprehensive ban on nuclear weapons 

By Torbjørn Graff Hugo

The idea of a comprehensive ban on nuclear weapons has gained traction in the multilateral system over the past couple of years, having been presented and discussed on numerous oc- casions, both among states and civil society.1 Most recently, a number of states called for the start of negotiations on a legal framework prohibiting nuclear weapons during the High- Level Meeting on Nuclear Disarmament on September 26. This paper assesses the pros and cons and the general viability of such a proposal, herein what form a ban on nuclear weapons might take and how it would work, how it would relate to existing regimes such as the NPT, and whether it would in fact be an effective tool for achieving the eventual elimination of all nuclear weapons.


Policy Paper No 3/2013


Introduction

The idea of a ban on nuclear weapons is about as old as the weapon itself. But ever since the dawn of the nuclear age, the implementation of this idea has proven extremely difficult to achieve. In the late 1950s, the acknowledgement of the failure to put in place a comprehensive post-war solution for the global prohibition and elimination of nuclear weapons, combined with an acute fear of what the consequences of inaction might be, led to proposals for intermediate solutions. The two key intermediate steps were a prohibition on testing and a prohibition on transfer of nuclear weapons. Agreement on a partial solution for the prohibition on testing was achieved in 1963 (PTBT), and the instrument prohibiting transfer of nuclear weapons was successfully completed by 1968 (NPT). In the development of both these regimes, however, there was no confusion about the fact that these measures represented partial solutions.

…the only provisions of the NPT that actually prohibit anything concern the transfer and manufacture of nuclear explosive devices, as stipulated in articles 1 and 2 of the Treaty.

As a symbol of this fact, the NPT was provided with a clear obligation by all states parties to pursue negotiations on further measures aimed at achieving the full elimination of all nuclear weapons. While these provisions of the NPT are no less legally binding than the rest of the treaty, the only provisions of the NPT that actually prohibit anything concern the transfer and manufacture of nuclear explosive devices, as stipulated in articles 1 and 2 of the Treaty.

In 1995, the NPT was extended indefinitely, and a year later, a more comprehensive version of the test-ban treaty was negotiated (CTBT). Though the former has failed to prevent the emergence of four additional nuclear-armed states and the latter has yet to enter into force, these prohibitions on transfer and testing, respectively, have been largely successful in establishing universally applicable norms. Nuclear weapons are not openly transferred, even between states recognized as nuclear-weapon-states under the NPT, and the testing of nuclear weapons has virtually ended. The international response to the recent testing by the DPRK, the only country to have tested nuclear weapons over the last decade, serves to illustrate the strength of this norm.

In addition to outlawing transfer and testing, however, a typical arms prohibition regime under international law would include provisions outlawing use, possession, development, production, other forms of acquisition, and stockpiling — and usually also provisions on assistance, encouragement, and inducement. With regards to nuclear weapons, only transfer, acquisition and manufacture are currently explicitly prohibited under international law, and those prohibitions are not currently universally applicable. Compared to other weapon categories deemed to cause superfluous injury and unacceptable humanitarian suffering, the prohibition regime for nuclear weapons is therefore relatively week.

The idea of a ban

In its most basic form, the idea of a ban on nuclear weapons appears aimed at ensuring that nuclear weapons are subjected to the same form of comprehensive prohibition as other comparable weapons.

At the face of it, this hardly seems like a radical proposal. The goal of a world without nuclear weapons is shared by virtually all states in the world, and is also firmly embedded both in the NPT and in most other international documents relating to nuclear weapons — including in the strategic concept of NATO. And though the specific properties of this end goal are rarely discussed, most states would likely also agree that at some point a comprehensive legal framework will be needed in order to ensure that a world without nuclear weapons will continue to stay that way.

If there is a radical component in the recent calls for a ban on nuclear weapons it should therefore not be the idea of a nuclear weapons convention in itself. A more probable point of contention might instead be the indications that such a ban can be negotiated now, and secondly, as argued by a growing number of NGOs, that it can be negotiated even without the participation of the nuclear-armed states.2

In its most basic form, the idea of a ban on nuclear weapons appears aimed at ensuring that nuclear weapons are subjected to the same form of comprehensive prohibition as other comparable weapons.

First, supporters of the early start of negotiations on a ban have argued that there is no reason to wait until disarmament is completed before negotiating a nuclear weapons convention, and that, on the contrary, a ban treaty would be an important catalysing component in the achievement of further reductions. The basic logic, which can be found in all other similar regimes, is that prohibition must come before elimination. This is, for example, the case with both the biological and chemical weapons conventions. There are no compelling reasons why the negotiations of a convention should be postponed until certain levels of reductions have been achieved.

The basic logic, which can be found in all other similar regimes, is that prohibition must come before elimination.

The second point, however, is intuitively more difficult to grasp.  Why bother negotiating a prohibition regime that does not include the states that actually possess the weapons being prohibited? One frequent response to this question is that such an instrument, even without the participation of the nuclear-armed states, would create a strong international norm that would have an impact on all states, regardless of whether or not they are parties to the regime. It would establish a universal norm against both use and possession of nuclear weapons, or as ICAN formulates it, a ban “would allow nations in any part of the world to formalize their rejection of nuclear weapons and help create a clear international legal norm against the possession of nuclear weapons”.3

Reference is typically made to the impressive norms that have already been established against the use of anti personnel mines and cluster munitions since the entry-into-force of those conventions (MBC and CCM), establishing a standard and a practice of non-use that is politically very difficult to ignore. Another, and perhaps more comparable example, is that of Syria and the international response to the use of chemical weapons there in 2013. The fact that Syria had not ratified the Chemical Weapons Convention (CWC) was considered quite irrelevant when the international community debated how to react to the use of these weapons.

Efforts have also been made by civil society actors to underline that the negotiation of a ban should be open to all interested states, and that this of course also includes nuclear-armed states. The argument is not that anyone should be excluded, but that the negotiations shouldn’t be contingent upon the participation of any given state, even if this means that the ban will be negotiated without the participation of any single nuclear-armed nation.

In this perspective, the ban treaty becomes a tool for empowering the states that do not themselves possess the weapons, and to engage those states that for many years have considered the issue of nuclear weapons as something that does not concern them. And since the non-nuclear-armed states make up the vast majority of the states in the world, such an approach is seemingly quite potent, though it also raises a number of questions.

The effectiveness of a ban

One such question relates to the effectiveness of the prohibition if the treaty only includes states that have already banned nuclear weapons (nuclear-weapon-free zone states) and/or do not possess the weapons. Would there be anything else on the agenda of the meeting of states parties to that treaty than the issue universalization? And how would that in practice differ from what the NPT framework represents today? In the NPT, most of the nuclear-armed states are at least present to listen to the admonitions and complaints by the non-nuclear-armed states.

On the one hand, it seems clear that the calls for a prohibition with or without the participation of the nuclear-armed states represents a resignation or at least an acknowledgement of the fact that the nuclear-armed states in no way appear ready to give up their nuclear weapons in the foreseeable future – be it unilaterally, bilaterally, multilaterally, or as part of a consensus-based negotiation in the Conference on Disarmament. As such, the ban approach bears the marks of being a plan B.

…the ban approach bears the marks of being a plan B.

Whether or not a ban treaty would be effective, however, can only be assessed in comparison to the alternatives, and in light of the developments (or lack thereof) over the past decade in the field of nuclear disarmament, the competition on effectiveness is not exactly overwhelming. It will soon be 20 years since the adoption of the CTBT, and with the exception of Indonesia, who recently ratified the treaty; there are no signs that the remaining 8 Annex-II states will follow suit and enable the Treaty to finally enter into force.

A similar story can be told about the efforts to negotiate a fissile material (cut-off) treaty (FMCT). In the outcome document of the 2000 Review Conference of the NPT, the states parties agreed to negotiate such an instrument within 5 years. 13 years later, the CD remains deadlocked, and despite numerous efforts to reinvigorate the CD there is no sign of this changing.

Comparing the effectiveness of these approaches quickly becomes an exercise in modesty and in minimizing expectations. Equally important, however, is that there is an inherent apples-and-oranges element in such comparisons. The purpose of a comprehensive prohibition on nuclear weapons differs significantly from those of the FMCT and the CTBT, which raises another key question about the ban proposal, namely how a ban would relate to other existing and proposed regimes.

Pieces in the puzzle

With regard to the FCMT, there is good reason to argue that a ban treaty would be complementary. The reason for this is that the proposed substantive elements of an FMCT primarily place obligations on the nuclear-armed states. It is a treaty aimed at halting, and possibly eliminating (this is where the deadlock-generating disagreement is situated), fissile material that could be used for weapons production.

Advocates for a prohibition treaty have argued that role of a ban would be to supplement the NPT

For the non-nuclear-weapon states who are already subjected to IAEA safeguards and for whom the ‘manufacture’ or ‘reception’ of such material is already prohibited under the NPT, an FMCT would arguably make very little difference. The FMCT, in other words, is primarily an arms control instrument, not a prohibition treaty, and as such it belongs primarily in the domain of the nuclear-armed states. After all, as the mantra goes, the nuclear-armed states are the ones that need to do the disarming. Hence, if the nuclear-armed states manage to agree among themselves on how to go about capping and cutting their weapon-grade fissile material, there is little reason for the non-nuclear-armed states to object. In fact, the negotiation of such a treaty would perhaps be more effective if it was taken out of the CD and negotiated in a multilateral format where only the 9 nuclear-armed states took part.

With regard to the CTBT, the story is a little different, though one could argue that this regime too primarily concerns the nuclear-armed states, since the ‘manufacture’ of nuclear weapons is illegal for the non-nuclear-weapon states under the NPT, and that the testing of a nuclear device typically requires prior manufacturing. On the other hand, there is no explicit prohibition in the NPT against the testing of nuclear weapons, and a ban treaty would probably also include explicit language on testing. If so, the ban treaty would end up enveloping the CTBT, though for as long as there are states outside the ban treaty, the CTBT would still remain a separate legal instrument to which any state could accede. And so too would the CTBTO, with its key role in monitoring the regime.

Without belittling the roles of the CTBT or a future FMCT, the most important relationship between a ban and other relevant regimes is not doubt that with the NPT. Advocates for a prohibition treaty have argued that role of a ban would be to supplement the NPT, and that the negotiation of such an instrument would constitute what Article 36 refers to as “a movement towards fulfilment of existing commitments to work towards disarmament, including Article 6 of the NPT”.4 The content of this statement is hard to argue with, but in a sense, the argument remains as vague as article VI itself. On a practical level, would a ban result in a reduced focus on non-proliferation? Or, if the ban treaty envelops most of the substantive elements of the NPT, would it make states refrain from participating in the meetings of the NPT, or even withdraw from it altogether?

There is little doubt that the establishment of a comprehensive prohibition on nuclear weapons will have some form of impact on the NPT. How exactly the relationship between the two regimes would develop, however, is difficult to predict. One scenario is that the NPT and the ban treaty will gradually switch roles as the membership of the ban treaty increases, eventually making the ban treaty the new cornerstone of the legal framework governing nuclear weapons.

There is little doubt that the establishment of a comprehensive prohibition on nuclear weapons will have some form of impact on the NPT.

Another scenario is that the relationship between the two regimes will be more issue-specific, meaning that some issues will remain in the NPT, while others — be it safeguards, peaceful use of nuclear energy, the role of nuclear weapons in military doctrines, missile defence systems or region-specific issues — might gradually be transferred to the new regime. The benefit of such a scenario is that the NPT could be left to focus on the purpose for which it was created, namely to prevent the transfer of nuclear weapons between states.

A third scenario is that the NPT will continue to remain the cornerstone of the international legal framework governing nuclear weapons until all nuclear weapons are in fact eliminated, at which point the NPT will have completed its role and all the nuclear-weapon states will be ready to accede to the nuclear weapons convention. Since the NPT is likely to be the only forum where the non-nuclear-weapon states can express their expectations and frustration in the presence of the nuclear-weapon-states, this is perhaps the most likely scenario, and it also the scenario in which most aspects of the nuclear weapon discussion would continue as they are today, but, of course, supplemented by a legal framework that at some point will be ready to envelope all the other treaties and become the equivalent of what the CWC and the BTWC are for chemical and biological weapons today.

What is not very likely to happen if a ban treaty is negotiated, is a sudden shift of attention whereby a massive block of NPT-members disengage from the deliberations of the regime overnight and decide to direct all their diplomatic attention to the ban regime. Even with the establishment of a comprehensive prohibition, the issue of non-proliferation will remain a deeply consolidated norm, and will remain an important issue also for the non-nuclear-weapon states.

Even with the establishment of a comprehensive prohibition, the issue of non- proliferation will remain a deeply consolidated norm, and will remain an important issue also for the non- nuclear-weapon states.

After all, the non-nuclear-weapon states accepted the bargain of the NPT also because they acknowledged the need to prevent more states from acquiring such weapons. Common for all the scenarios, therefore, is that the NPT will remain an important piece of the international legislation governing nuclear weapons far into the foreseeable future.

The added value of a ban

If this is the case, however, it still raises the question of how exactly the ban would supplement the NPT. If all the current debates will remain where they are, be it in the NPT or in the CD, what is left for the ban treaty to deal with? Would there be anything at all to discuss during the meeting of states parties?

If all the current debates will remain where they are, be it in the NPT or in the CD, what is left for the ban treaty to deal with?

The key role of establishing a universal norm against both possession and use of nuclear weapons is, of course, one answer. And this clearly fills a hole in the current legal framework that should, at some point, be filled. But how would that happen? What would be the discussions that contribute towards establishing that norm?

Here as well, predictions are hard to make, but it is possible to envisage that, in addition to the question of universalization, the meeting of states parties to a future nuclear weapons convention would discuss issues related to anything from national implementation measures, technological cooperation, trade in nuclear materials, relations with states not parties to the treaty, improvements to the safeguards regime, to issues related to compliance measures and dispute settlement, and possibly also something concerning victim assistance. Again, the issues that will figure most prominently on the future agenda of a meeting of states parties to a ban treaty are difficult to predict, and they will also be shaped by the circumstances in which the regime develops. But, what the above list illustrates is that it is possible to identify a number of issues that deserve attention from the international community, but that are not currently part of the multilateral debate.

There are two basic approaches to how to deal with the stockpile destruction issue in a ban treaty.

What the above list does not contain, however, is a specific agenda item on disarmament or stockpile destruction. Both the CWC and the BTWC (as well as the MBC and the CCM) have provisions on stockpile destruction, and this is also likely to be a hot topic should there be a process to negotiate a ban on nuclear weapons. This, of course, relates to the key question above, on whether or not the negotiation process or the regime as such will include any of the nuclear-armed states. If no nuclear-armed states are involved in the shaping of the treaty, the need for a specific and time-bound disarmament obligations is in one way reduced, but this does not mean a treaty with only non-nuclear-armed states parties would automatically be void of any language on disarmament.

There are two basic approaches to how to deal with the stockpile destruction issue in a ban treaty. The first is to require full compliance with all of the provisions of the treaty before a state can become party. This would follow the pattern set by South Africa when it acceded to the NPT. After having dismantled all its nuclear warheads, South Africa then invited the IAEA to verify that all nuclear weapons and related materials had been dismantled, which in turn enabled it to accede to the NPT as a non-nuclear weapon state, subject to the same safeguard obligations as all the other non-nuclear-weapon states parties. In short, this approach would require destruction to come before accession.

The second option, conversely, would be to allow for accession before all stockpiles have been destroyed. This would require more detailed disarmament language in the treaty, but it could potentially also lower the threshold for participation by the states that possess nuclear weapons. In order to avoid a repeat of the NPT-scenario, however, this form of deferral or grace period would have to be time-bound and subject to approval on a case by case basis by the states parties, and it would probably also necessitate the establishment of a system for verifying progress on stockpile destruction (verification of disarmament). As previous attempts have shown, however, disarmament verification is tricky business both legally and technically, and the involvement of personnel from non-nuclear-weapon states would create a direct risk of violating the basic obligations of the NPT. There is also the additional aspect of states wanting to protect military secrets, which further complicates the matter. And while there has indeed been progress on this front in recent years, notably with the on-going UK-Norway initiative,5 there is no escaping the fact that the verification of nuclear disarmament is a highly delicate matter. In short, this approach could be summed up as a join-then-destroy option, which would be the format most closely resembling those of other prohibition regimes.

There is, of course, a third alternative, which would be to create an intermediate category, similar to what can be found in the Treaty of Tlatelolco. This alternative would grant non-complying states the right to sign and even participate in the treaty framework before compliance is verified, but not to accede to the regime as full states parties.

A related issue that would also likely come up should the negotiation of a ban treaty be initiated is the question of safeguards.

A related issue that would also likely come up should the negotiation of a ban treaty be initiated is the question of safeguards. Should the IAEA still be responsible for ensuring that peaceful nuclear technology is not diverted to military purposes? Or should something new be set up? And if so, how comprehensive should these new safeguards be? The short answer is that there is no reason to reinvent a wheel that works. If the states negotiating a ban treaty agreed that it was necessary to create a safeguards regime that went beyond that of the NPT, this could be done by adding obligations equivalent to or stronger than the Additional Protocol that more than 100 states have already accepted.6 The crucial point as far as safeguards are concern, is that they would have to apply equally to all states parties, with the possible time-bound exception for states that are undergoing phased elimination under a grace period, should that option be chosen. The bottom-line, in either case, is that all states in a prohibition regime would have to be subject to safeguards that are at least as comprehensive as those that are in place for the non-nuclear-weapon states under the NPT.

All these questions and more will have to be dealt with in the process of negotiating a ban on nuclear weapons. The final result, should these negotiations in fact take place, would probably not match either of these alternatives completely. But the above outline does provide some clue as to the challenges that will have to be overcome in order to put in place a functioning prohibition regime for nuclear weapons.

Conclusion

The old idea of a ban on nuclear weapons seemed to have received an injection of new realism over the past couple of years, with a growing number of both states and NGOs converging upon a demand for a comprehensive prohibition treaty to be negotiated as soon as possible, with or without the consent or participation of the states that actually possess these weapons. After having tried for decades to get the nuclear-armed states to accept the need for a treaty that puts nuclear weapons on equal footing with the other types of weapons of mass destruction, many of the non-nuclear-armed states who make up the vast majority of the states in the world, have recently started to  discuss the possibility of negotiating such and instrument even without the participation of the nuclear-weapon possessors.

The old idea of a ban on nuclear weapons seemed to have received an injection of new realism over the past couple of years

Such an approach raises a number of questions, however, not least with regard to the effectiveness of a prohibition regime that does not include any of the states that actually possess these weapons. The advocates for a ban treaty contend that the effectiveness of a ban treaty would have to be measured by its ability to establish a universal norm against both use and possession of nuclear weapons, which in turn will be a catalyst for the full elimination of these weapons. While this may be true, there are still a number of uncertainties surrounding the final form of and support for such a regime, which in turn means that it is difficult to predict exactly how such a regime would impact the broader political dynamics in the field of nuclear disarmament.

Some of these uncertainties and questions have been discussed and elaborated in this paper, and more questions will likely be raised in the months to come. What does seem clear, however, is that the political landscape of nuclear disarmament is shifting, and that the calls for a ban on nuclear weapons is something that states will soon have to take a stand on. But in so doing, the critical question is perhaps not whether they are completely convinced of the effectiveness that a ban on nuclear weapons will have in terms of bringing the world closer to zero. Given the continuing deadlock in the multilateral disarmament machinery, and lack of other viable alternatives, the questions might rather be if states are willing to run the risk of not even trying.

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ENDNOTES

1      See e.g. Joint statement by CELAC to the High-Level Meeting on September 26, 2013; Final Report on the “Open-Ended-Working Group to develop proposals to take forward multilateral nuclear disarmament negotiations for the achievement and maintenance of a world without nuclear weapons”, joint statement by 16 states to the NPT Preparatory Committee in 2012, and by 35 states to the UNGA 2012 including reference to the need to ’outlaw’ nuclear weapons; resolution adopted by the red cross / red crescent council of delegates meeting in November 2011; as well as a large number of national statements at e.g. the UNGA, NPT, OEWG, High-Level Meeting, as well as The Conference on the Humanitarian Impact of Nuclear Weapons in Oslo in March 2013.

2      See e.g. “The Case for a Ban Treaty”, at [http://www.icanw.org/why-a-ban/the-case-for-a-ban-treaty/]

3      ICAN, “Ban Nuclear Weapons Now”, available at [http://www.icanw.org/wp-content/uploads/2012/08/BanNuclearWeaponsNow.pdf]

4      Article 36, “Banning Nuclear Weapons”, at [http://www.article36.org/nuclear-weapons/banning-nuclear-weapons-2/]

5      See e.g. “Norway/UK collaboration to investigate technical and procedural challenges regarding possible future nuclear disarmament verification regime”, at [https://www.gov.uk/government/publications/uk-norway-initiative-on-nuclear-warhead-dismantlement-verification—2]

6      The Additional Protocol to the Comprehensive Safeguards Agreement with the IAEA allows for the inspection of undeclared sites.

October 2013

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