What past experience can tell us about addressing the humanitarian impacts of nuclear weapons
By John Borrie
In this paper, John Borrie draws parallels between the humanitarian initiative on nuclear weapons and the processes to ban cluster munitions and anti-personnel mines. Although there are important differences between nuclear and conventional weapons, previous disarmament initiatives offer valuable lessons for the humanitarian initiative.
|Policy Paper No 7/2014||Published: May 2014|
- 1 Introduction
- 2 Lessons from the past
- 3 Structural or architectural aspects of process design
- 4 What use could a ban on nuclear weapons be?
- 5 Conclusion
- 6 Endnotes
A current focus of international attention is on examining the humanitarian consequences of the detonation of nuclear weapons. Some see parallels with recent humanitarian inspired processes like efforts leading to the 2008 Convention on Cluster Munitions and, prior to that, the 1997 Anti-Personnel Mine Ban Convention (‘Mine Ban Treaty’).
There are numerous differences, of course, between nuclear weapons and ‘conventional’ explosive weapons such as anti-personnel mines and cluster munitions. This withstanding, how anti-personnel mines and cluster munitions were dealt with showed that unpropitious international situations for dealing with the effects of problematic weapons could be transformed—with productive results.
Correspondingly, this paper engages with the question of what tactical lessons these initiatives might suggest for policy practitioners considering the idea of a nuclear weapons prohibition. It focuses on the cluster munition process, in particular, since it was more recent and incorporated some experiences from international campaigning on landmines. This paper is not intended to be prescriptive or exhaustive.
Lessons from the past
Leading campaigns requires more than core groups and NGOs—it requires a framing
In both the international campaigns on anti-personnel mines and cluster munitions, core groups of small and medium-sized states provided leadership to deliver these processes at viable negotiations on ban treaties. In both instances, transnational advocacy networks (TANs) of non-government organisations (NGOs) also played visible crucial roles, for instance, in collecting and presenting evidence of the harm landmines and cluster munitions caused. Campaigners mobilised grass-root public support and media interest, which contributed to pressure on governments to participate in the international processes to ban these weapons, even when it was at odds in some cases with the preferences of major allies. Sometimes (but not always) TAN campaigners worked in close partnership with the core groups of governments.
Until these initiatives were well underway, such roles and contributions were not so clear-cut. Nor do they capture all actors of significance in their categorisations. In the cluster munition case there was an ‘epistemic community’ of practitioners that contributed to framing of cluster munitions. This loose community consisted of individuals from certain states, international organisations and the Cluster Munition Coalition (CMC) – the main TAN in the context of cluster munitions. But it also encompassed researchers, humanitarian workers and others. It was primarily concerned with strengthening knowledge claims about the consequences of cluster munition use. Inevitably, it contributed to the argumentation underpinning the Oslo process directly (by presenting, interpreting and discussing these knowledge claims) and indirectly (by influencing the thinking of those within the epistemic community and impacting their interactions beyond it).
This epistemic community owed its origins to the network of trust built up in the landmine campaign, as well as relationships between individuals established in the course of research and monitoring of the humanitarian impacts of landmines and explosive remnants of war, and implementation of the Mine Ban Treaty.
Changing policy makers’ minds required robust critical argumentation.
This diversity of perspective based on varying experiences and skill sets was crucial to the development of a viable framing that supported efforts to achieve a ban treaty on cluster munitions. Much has been made of the fact that both the Ottawa and Oslo initiatives were guided by clear and ambitious humanitarian goals. While this is true, before such goals crystallised, the humanitarian consequences of the weapons had to be effectively articulated so as to create a viable framing.
ARGUMENTATION AND EVIDENCE
In other words, efforts to changes the positions and policies of states begin with individuals, who change their minds or seek to persuade others to do so. In 2003, most policy makers considered that cluster munitions were legitimate and versatile weapons, provided these were used in conformity with existing humanitarian law rules. In less than five years, this situation had changed to one in which the majority of the world’s countries considered cluster munitions to be unacceptable weapons requiring prohibition.
Changing policy makers’ minds required robust critical argumentation. In turn, argumentation in the case of cluster munitions rested on a body of evidence with a basis in “real world” observation, and which formed a basis to pose an alternative narrative or explanation for the given phenomenon (in this sense, the phenomenon being the effects of cluster munitions).
International efforts on cluster munitions (and, prior to this, anti-personnel mines and explosive remnants of war) emphasised the humanitarian nature of evidence as crucial. But it does not necessarily follow that such evidence would have to be wholly humanitarian in nature in other contexts—like on nuclear weapons. What is likely more important is that whatever its nature, this evidence be internally and externally valid, and able to stand up to open scrutiny. This is a significant point for those anxious about a perceived paucity of evidence based on the (fortunately) few instances of detonation of nuclear weapon in conflict compared with conventional explosive weapons like landmines and cluster munitions.
POINT TO THE PROBLEM, BUT POSE A PLAN
Although it may not be the case in the early stages of framing, those pointing out an existing, problematic situation must presently constitute a solution or effective response that goes beyond characterising the issue. This is something the unacceptable harm framing did in the Oslo process, linked as it was in the February 2007 Oslo Declaration to the concept of a prohibition of some kind achieved through a diplomatic treaty-making process.
…a willingness to share political, logistical and financial burdens on an equitable (although not necessarily equal basis) must accompany states’ rhetorical commitments to an objective.
Plans also require resources to implement. This extends not only to the holding of meetings, production of documents and diplomats’ time, but also to the many forms of activity that support successful processes by contributing momentum including advocacy and research. This implies that a willingness to share political, logistical and financial burdens on an equitable (although not necessarily equal basis) must accompany states’ rhetorical commitments to an objective. While the mechanisms for this are tried and tested in UN forums, initiatives founded upon ‘coalitions of the willing’ may be more flexible in certain cases. At the same time, it underlines the importance of setting clear, ambitious goals (to maximise support) to be achieved in time-bound processes since no policy maker likes to commit to writing, in effect, a blank cheque.
PERCEPTIONS CHANGE, AND SO CONTEXT IS MALLEABLE
The perceived viability of the solution sought through a plan is of course important. However, a critical point is that perceptions of viability can alter over time, as they did on cluster munitions. As mentioned earlier, virtually no state representatives acquainted with the problems of cluster munitions in 2003 (and few of them even in early 2006) appeared to consider a ban on the weapon as feasible in the foreseeable future.
Meanwhile, the evolution of the CMC’s call from a moratorium to a ban call reflected differences within the Coalition concerning the tactics of a viable call. Until the Oslo process, some NGOs in the CMC feared that an explicit and comprehensive cluster munition ban call might undermine the Coalition’s credibility with states: A balance had to be found between ambition, and being too far out in front. The balance shifted over the course of the 2003-08 period, while the views of state policy makers within the Oslo process itself became more ambitious as a ban (in appropriate company) seemed to become more viable due to factors like those mentioned earlier.
ADAPTING IS NOT A SIGN OF WEAKNESS
Policy practitioners—even moral entrepreneurs like NGOs—need considerable flexibility in the course of their efforts concerning their instrumental preferences; that is, how to achieve what they are seeking to achieve including presenting a clear message, laying tactics and engaging with partners. This is actually tricky for TANs because the process of aligning around common aims and approaches can be difficult and time consuming for these entities constituted of NGOs with potentially diverse identities and concerns. In Wellington and in Dublin, for instance, the CMC encountered certain internal differences in reconciling their leadership’s strategy and tactics with the views of some in the Coalition’s grassroots.
It can also be an issue for state representatives. For example, a concern for the facilitator on definitions in the Dublin negotiations (Ambassador MacKay of New Zealand) was the position he was aware he was putting ‘Teetotal’ states in—of negotiating text in article 2 on specific exclusions their governments were, as matters of principle, opposed to. The concern was that this might be too difficult for the Teetotal states to bear. These states could have created negotiating obstacles on a point of principle, but their flexibility permitted progress to be made and, ultimately, a robust definition of cluster munitions to be drafted.
… some level of adaptation will be necessary in light of unforeseen factors or things beyond the control of those involved.
It is reasonable to expect at the outset, and even some way along a complex process like an international campaign, that some level of adaptation will be necessary in light of unforeseen factors or things beyond the control of those involved.
THE EARLY STAGES ARE CRITICAL FOR GETTING ARGUMENTATION AND MESSAGING RIGHT
Analyses of multilateral processes often focus on treaty negotiations. These are the stages in the emergence of new normative arrangements at which differences are perhaps most explicable and tangible to outsiders. However, the early stages in such processes are equally critical, especially in efforts to engender frame alignment amongst relevant actors such as moral entrepreneurs, knowledge-based experts and representatives of progressive states. Proper intellectual and logistical preparation permits campaigners and aligned states to capitalise upon exogenous opportunities that present themselves in order to create additional momentum toward their common goals, even when these events are unexpected (see also the section above).
For example, the massive use of cluster munitions in the 2006 Southern Lebanon conflict was not predicted. However, NGOs and non-governmental “experts” had anticipated that further use of the weapon creating humanitarian hazard would occur some time based on the historical pattern of persistent harm they had observed. The Southern Lebanon conflict’s consequences bore out NGO claims about humanitarian risks of cluster munitions made ahead of time. It consequently strengthened the case amongst states for specific restriction.
The early stages of the emergence of international campaigns are also invaluable opportunities to work out kinks in areas like collective decision-making and coordination within TANs, communication, and the nature of relationships between a given TAN and leader-states. This can often require internal reform of varying kinds within social movement coordination mechanisms, which requires consultation and so takes time. This is of consequence to states, since leader-states may depend on TANs as partners in various tasks.
TAN and epistemic community influence in a given context depends heavily on the credibility of their identities as “good” or “expert”. This is less critical for states because in international legal regime formation in the security field states (and only states) can vote or, in consensus environments, block consensus or potentially horse-trade with other states by creating linkages amongst other issues. Even a state with poor arguments and evidence to support its position can obstruct a negotiation unless its identity or outside pressure constrains it from doing so. Contemporary examples include the CCW’s inability to agree to adopt new rules on mines other than anti-personnel mines, and continued deadlock in the Conference on Disarmament.
It meant in the cluster munition context that an important phase in which state behaviour was influenced was during the “pre-negotiation” stages before CCM negotiations at the Dublin conference. As the CMC discovered on trying to reopen paragraph 3 of article 21, when states have firm preferences and smell a workable bargain, it can be very difficult to influence their behaviour.
Structural or architectural aspects of process design
Efforts on cluster munitions over the last decade were unusual because of the emergence of not one but two international negotiations on restricting the weapon. These processes ran in parallel and involved some of the same actors. The contrasts between them underline the importance of structural or architectural aspects of process design. There is not space here to dwell on the CCW in any detail, suffice that its decision making procedures, composition (including the bulk of the most militarised states with divergent and even conflicting perceived interests) and an absence of means to put the claims of users and producers to the test tended, historically, to lowest common-denominator outcomes. The cluster munition issue was never likely to be a glowing exception.
…the Oslo process was an initiative based on a document (the Oslo Declaration) initially and largely drafted by Norway
In contrast, the Oslo process was an initiative based on a document (the Oslo Declaration) initially and largely drafted by Norway, a concerned, instigating state. This Declaration set out a time-bound framework and a sequence of milestones. International organisation and civil society partnership in the initiative was baked in. Unlike the mandates of the CCW from 2006, the Declaration’s general aim was not balanced against assumed military requirements but was instead contextualised as a humanitarian imperative in view of the consequences of cluster munition use. It was ambitious enough to be of broad appeal, while not attempting to pre-negotiate detailed understandings.
It would have been difficult to maintain the ‘define-and-ban’ approach to discourse the Oslo process took without the Oslo Declaration as a touchstone, especially when the core group steering the initiative was put under mounting pressure from the so-called Like-minded states. (The composition of the Like-minded is not important here, but broadly this group wanted discourse on defining cluster munitions to more closely resemble that of the CCW.) And, of course, the steering of a self-selected motivated group of states also distinguished it from the CCW, as did the Dublin conference rules of procedure, which reflected general UN practice rather than arms control consensus.
The Oslo Declaration, the define-and-ban approach and these other aspects were features of a process intended to perform a task—ban cluster munitions that cause unacceptable harm to civilians—rather than reflecting the precedents and traditions of a thirty year-old forum (the CCW). Like the Ottawa process, the Oslo process avoided a so-called competency trap experienced in the CCW, “the tendency for a system to become firmly locked into a particular rule-based structure by virtue of developing familiarity with the rules and capabilities for using them”. The parallel cases of the Oslo initiative and the CCW offer important contrasting examples to those trying to figure out how to pursue new normative regimes likely to face opposition from great power minimalists in the future—including to devalue nuclear weapons.
This is also borne out by reference to other contemporary situations. Although, of course, there were specific issues underlying the failure of the Arms Trade Treaty negotiations to adopt an outcome in 2012, it is also fair to point out that the consensus-based rules of procedure adopted earlier in the process facilitated this unsatisfactory situation. The politicised New York multilateral environment also played a role. (In April 2013, the ATT was adopted in the UN General Assembly after a vote.)
a number of informed commentators are critical of the Nuclear Non- Proliferation Treaty (NPT) review conference process as embedding an unhelpful status quo in the current nuclear order.
Closer to nuclear disarmament, a number of informed commentators are critical of the Nuclear Non-Proliferation Treaty (NPT) review conference process as embedding an unhelpful status quo in the current nuclear order. They argue that, due to the NPT’s structure and traditions, as a forum it can only fail to add momentum to devaluing and de-legitimization of nuclear weapons probably essential to persuading nuclear-armed states to eventually relinquish their nuclear arsenals.
SURPRISING THINGS ARE POSSIBLE, DESPITE GLOOM AND PESSIMISM
Scholars continue to debate the significance of international regimes banning anti-personnel mines and cluster munitions. In more practical terms, though, these regimes suggest that the great powers cannot continually stymie the international community as it seeks to achieve what are considered by the majority of the world’s nations to be worthwhile goals.
This realisation may bear further fruit in international regime building. Often, focus is on particular events such as formal adoption of a new international standard or its achievement of universality as proof of a norm’s emergence. Formal agreement of the Mine Ban Treaty and CCM indeed corresponded to the receding legitimacy of anti-personnel mines and cluster munitions as perceived by much of the international community. However, this was due to the respective international campaigns against the weapons facilitating them, which already called these arms into question. Such was the strength and breadth of these campaigns that anti-personnel mines and cluster munitions were becoming stigmatized well before treaty norms were agreed. Similarly, the adoption of each of these treaties represented a stage in a normative process of de-legitimization of the weapon in question that continues.
What use could a ban on nuclear weapons be?
This is relevant to current debate about what can be done to create renewed momentum toward nuclear disarmament. Examining the historical record on nuclear disarmament and arms control indicates it has never been easy to achieve. Nevertheless, state policy makers have, in fact, been rather more susceptible to pressure for nuclear disarmament than they have usually preferred to let on (at least while in office). At present, nuclear-armed states appear relatively comfortable with the international architecture for managing nuclear order because procedurally they are able to thwart non-nuclear weapon states’ attempts to modify the status quo. It is also because they control the agenda. It means the spotlight usually shines on issues of non-proliferation, non-compliance and enforcement of that status quo rather than their apparently indefinite possession of nuclear weapons despite the NPT Article VI obligation.
In that respect, it has been argued that an international campaign for a treaty to ban nuclear weapons might be one of the better—and, possibly, only—options open to non-nuclear weapons states to collectively seize the initiative, and contribute toward establishing the conditions for eventual nuclear disarmament in a constructive manner. Proponents of such a ban treaty have argued that:
- A prohibition adopted by a majority of the world’s nations sends the signal that use of nuclear weapons is unacceptable, and that—whatever possessors claim—continued, apparently indefinite, possession lacks legitimacy.
- As the norm takes hold in global discourse and gains legal adherents, its existence will become a consideration affecting possessor states’ behaviour—as shown with the stigmatization of other weapons such as anti-personnel mines and cluster munitions.
- It would pose choices for states living under the nuclear weapons umbrellas of nuclear-armed states, and in turn affect their discourse with nuclear-armed allies.
- Nuclear-armed governments seeking to modernise, replace or sustain their expensive nuclear arsenals in the future would find this increasingly difficult to justify to their populaces (i.e. taxpayers), seeing as most of the world explicitly rejects these weapons. A nuclear weapons ban treaty norm would exacerbate dissonance between the perceived national self-identities of the NPT nuclear weapon states as “responsible” or “good” powers and continued possession of weapons outlawed as unacceptable by much of the rest of the international community.
Such a ban treaty should not be limited to use, proponents argue, but should also include provisions on development, production, transit, stockpiling, transfer and destruction of nuclear weapons. (A treaty just banning use would play into the hands of nuclear weapon states’ claims they have no intention of using the nuclear arsenals they possess. And, by de-linking use and possession, and it would fail to de-legitimize possession). A comprehensive ban treaty would be consistent with the NPT, and states’ broader and deeper obligations under international humanitarian law.
This short paper has introduced some ideas about how recent humanitarian-inspired processes to curb weapons deemed unacceptable could relate to building on international discussions about the humanitarian consequences of a nuclear weapons detonation. Many of the characteristics of any emergent process must differ from processes to ban anti-personnel mines and cluster munitions. These processes are not templates for a nuclear weapons ban treaty. Nevertheless, this paper’s cursory discussion reveals recursive elements, dynamics and critical argumentation policy practitioners could leverage, at least in the early framing stages, if they wished to.
Elements of this paper, originally written in December 2012, are further developed in John Borrie, ‘Humanitarian reframing of nuclear weapons and the logic of a ban, International Affairs 90: 3 (May 2014). See also Nick Ritchie’s article in the same issue: ‘Waiting for Kant: deterrence, devaluing and delegitimising nuclear weapons’.
 Borrie, J. and A. Thornton, The Value of Diversity in Multilateral Disarmament Work. Disarmament as Humanitarian Action. Vol. 4. 2008, Geneva: United Nations Institute for Disarmament Reseach. 85.
 Smyth, D., Organization of the Diplomatic Conference: Basic Proposal, Rules of Procedure and Structure of Work, in The Convention on Cluster Munitions: A Commentary, G. Nystuen and S. Casey-Maslen, Editors. 2010, Oxford University Press: Oxford. p. 28-31.
 NPT. Final Document: Volume 1 Part I — Review of the operation of the Treaty, as provided for in its article VIII (3), taking into account the decisions and the resolution adopted by the 1995 Review and Extension Conference and the Final Document of the 2000 Review Conference — Conclusions and recommendations for follow-on actions. in 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. 2010. New York: United Nations, p. 12 and p. 19.