The fairness dimension

The WMD Blog

A treaty banning nuclear weapons would be worthwhile whether it leads to physical disarmament or not

By Kjølv Egeland
2 June 2015

The Non-Proliferation Treaty is an intrinsically unfair Treaty, which divides the world between “haves” and “have nots”’, the Brazilian delegation maintained in a statement to the NPT Review Conference in 2010. Five years later, at the 2015 Review Conference, the South African delegation asserted that ‘we can no longer afford to strike hollow agreements every five years which only seem to perpetuate the status quo. The time has come to bring a decisive end to what amounts to “nuclear apartheid”’. Over the last five years, a perception of nuclear colonialism, P5 arrogance, and a generally fraudulent nature of nuclear politics has proliferated. But such sentiments are hardly new. The ‘fairness dimension’ of nuclear disarmament has coexisted with the ‘humanitarian’ and ‘security dimensions’ all along. But with the ban-treaty option on the table, states are in a position to do something about it.

Complaints about the unfairness of the nuclear non-proliferation regime are as old as the regime itself. Commenting on the draft that was later to become the NPT, the analyst David Vital lamented that the ‘key’ provision of the text ‘is the division of the international community into two classes of states’, and that it was well known that ‘the treaty’s principal business is to maintain the present membership of the two classes unchanged.’ The powerful phrase ‘atomic apartheid’, alluding to an aspect of race as well as one of class, was coined by the Indian diplomat V.C. Trivedi already in 1967. Given the NPT’s apparent unpalatable provisions, one might say it is a puzzle that it ever came into existence at all.

In fact, the discriminatory nature of the NPT was purported as the cause of the Treaty’s imminent undoing even before its adoption. Veiled threats and prophesies of the NPT’s collapse due to slow or lacking disarmament (and consequent perpetuation of the class structure) have been uttered consistently ever since. But unlike the racist regime in South Africaa country in which the struggle against racial oppression coincided with the struggle against nuclear weapons‘nuclear apartheid’ persists. In fact, the NPT has steadily attracted more and more state parties. And the year after Mandela’s assumption of office as President of South Africa, the two-tiered structure of the nuclear regime was extended indefinitely. We can only assume that most states reasoned that the goal of non-proliferation was important enough to mandate them swallowing the temporary indignity of second-class status, as the five NPT nuclear-weapon states (NPT5) pledged to redouble their efforts at disarmament. The good (non-proliferation) should not be allowed to become an enemy of the best (complete abolition), they probably concluded. Non-proliferation is likely to remain an important goal for most states for the foreseeable future, so the NPT probably has a long and healthy life as a non-proliferation instrument ahead of it.

The disarmament side of things is more difficult. The indignity conferred on the NNWS of being referred to the downstairs deck was supposed to be temporary. Yet disarmament has remained elusive.

This, I think, is one of the main reasons why more and more states appear to be supporting the commencement of negotiation of a treaty banning nuclear weapons whether the nuclear-armed states join or not. Many have suggested that a ban could have positive effects on physical disarmament even if it were not ratified by the nuclear-armed states, and this may well be the case, but, from the perspective of many NNWS, a ban treaty would have at least three positive functions independent of physical disarmament. This normative aspect has been somewhat neglected in recent debates about the logic of a ban, but I believe they are crucial in order to understand the motivation behindand consequently utility ofa ban.

  • First, a ban treaty would codify the widely held opinion that that the humanitarian consequences of nuclear weapons make such weapons unacceptable. The treaty would function as an embodiment of shared understanding, strengthening the case for non-proliferation.
  • Second, a ban treaty would have a communicative function. Until the NNWS decisively prohibit nuclear weapons, a case can be made that they implicitly recognise the unequal nuclear order. As long as nuclear weapons are not prohibited for five select states, those states will continue to cultivate a perception of having been awarded a ‘permanent entitlement’ to possess nuclear weapons. A ban treaty would withdraw any such recognition.
  • Third, a ban treaty is achievable on the short-term and has no obvious drawbacks (unless your goal is to retain nuclear weapons). Pursuing a new legal instrument gives the NNWS agency and control.

Viewed as a matter of principle rather than one merely of effectiveness or regulation, closing the ‘legal gap’ in the WMD regime is a goal in and of itself: Faced with perpetual ‘nuclear apartheid’ and the conclusion of NPT outcome documents at every other Review Conference that are subsequently made ‘nonsense’ of, a treaty banning nuclear weapons provides an escape route from cognitive dissonance for policy makers in NNWS who believe all members of the international community are equal under the law.

There is clearly a fairness dimension to nuclear disarmament. In Hedley Bull’s formulation: ‘Perfect international justice with regard to the possession of nuclear weapons can be achieved only by complete nuclear disarmament, or by an international system in which nuclear weapons are available to every state.’ The NWS should be glad that the equality-impulse has given rise to a movement towards the former rather than the latter.


Kjølv Egeland is an advisor at the International Law and Policy Institute (ILPI) and a doctoral candidate in International Relations at the University of Oxford.

The views set out in this post are those of the author and do not necessarily reflect the views of International Law and Policy Institute (ILPI).