By Gaukhar Mukhatzhanova
The Treaty on the Prohibition of Nuclear Weapons has been hailed by supporters as a historic achievement that they hope will be, in the words of the Hiroshima atomic bombing survivor Setsuko Thurlow, “the beginning of the end of nuclear weapons.”1
Although the prohibition treaty was negotiated by mostly like-minded states, the deliberations did not escape some of the familiar problems and disagreements plaguing the debates at nuclear Nonproliferation Treaty (NPT) and International Atomic Energy Agency (IAEA) meetings, which affected some of the treaty’s provisions. A short negotiation time frame and the lack of a preparatory process, along with the absence of a number of states traditionally active in disarmament and nonproliferation forums, also influenced the process and substance of the talks.
Given the apparently unbridgeable divide between the two sides of the debate on the desirability and timeliness of prohibiting nuclear weapons, the treaty was negotiated without the nuclear-weapon states and against their vocal opposition. Most European states were also absent, which was unusual for negotiations on a humanitarian treaty or indeed any UN-mandated process. On the other hand, civil society representatives from about 100 nongovernmental organizations actively participated and contributed to the process, which is unprecedented for nuclear weapons-related negotiations.
Issues and Actors
The treaty prohibiting nuclear weapons is a highly controversial subject in the NPT context, with NPT states-parties sharply divided on its benefits, dangers, and expected long-term impact. The ban negotiations themselves, however, were not especially contentious in large part due to the absence of the nuclear-weapon states and most of their allies, and the collective drive to adopt a treaty by July 7 was at times almost palpable. After the first week in March, one could observe broad agreement among states on the treaty’s core prohibitions, such as the use, possession, production, stationing, and deployment of nuclear weapons, as well as assistance in prohibited activities. Still, a number of issues proved difficult for the delegations to conclude, including the prohibition on the threat of use of nuclear weapons and on testing and transit, verification, provisions for the accession of nuclear-armed states, withdrawal, and the relationship of the prohibition treaty with other instruments.
States decided to include in the treaty the “disarm and join” (the South African model) and “join then disarm” options for nuclear-armed states’ accession, but the latter approach in particular raised a range of serious issues.16 Those concerned verification, compatibility of Article 1 prohibitions with the accession of a state still in possession of nuclear weapons, and the timeline and procedure for agreeing to an elimination plan.
Implications and Conclusions
It is remarkable that a treaty prohibiting nuclear weapons was concluded less than a year after the Open-Ended Working Group on Taking Forward Multilateral Disarmament Negotiations adopted a report recommending the commencement of negotiations. That 122 states voted in favor of the treaty’s final text sends a powerful message about the rejection of nuclear weapons as a legitimate instrument of national and international security. There is an extremely long way to go for the treaty to become customary international law,18 but if the number of states joining the ban grows steadily, so would the pressure on other countries to disavow nuclear weapons.
1. For Setsuko Thurlow’s statement, delivered on July 7, 2017, and most other statements and deliberation of the UN conference to negotiate the treaty, see United Nations, “Webcasts—English,” n.d., https://www.un.org/
disarmament/ptnw/webcast-english.html (accessed August 20, 2017).
3. For example, “Ukraine Conflict: Putin ‘Was Ready for Nuclear Alert,’” BBC News, March 15, 2015, http://www.bbc.com/news/world-europe-31899680.
4. Two U.S. representatives have introduced a bill attempting to strip the president of the sole authority to order a nuclear attack. Will Worley, “New Bill Aims to Ban Donald Trump From First Use of Nuclear Weapons Without Congressional Declaration of War,” Independent, January 25, 2017, http://www.independent.co.uk/news/world/americas/donald-trump-ban-use-nuclear-weapons-first-use-congressional-declaration-of-war-us-congressman-ted-a7545191.html.
5. The negotiations of the Arms Trade Treaty, for example, was preceded by three preparatory committee meetings, a group of governmental experts, and an open-ended working group. See Reaching Critical Will, “Arms Trade Treaty,” n.d., http://www.reachingcriticalwill.org/disarmament-fora/att (accessed August 20, 2017). The negotiators of the Comprehensive Test Ban Treaty, in drafting the verification provisions, drew on the work of the group of scientific experts that convened for more than two decades. See Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), “1993–1995: Prelude and Formal Negotiations,” n.d., https://www.ctbto.org/the-treaty/1993-1996-treaty-negotiations/1993-95-prelude-and-formal-negotiations/ (accessed August 20, 2017).
6. For a detailed overview of the first week’s statements, see Olivier Meier, Sira Cordes, and Elizabeth Suh, “What Participants in a Nuclear Weapons Ban Treaty (Do Not) Want,” Bulletin of the Atomic Scientists, June 9, 2017, http://thebulletin.org/what-participants-nuclear-weapons-ban-treaty-do-not-want10829. For detailed accounts of both sessions and reviews of treaty drafts, see Alicia Sanders-Zakre, “Banning the Bomb” Arms Control Association, July 7, 2017, https://www.armscontrol.org/blog/2017/banning-the-bomb.
7. One substantive amendment to the July 3 draft that the president had to make was reintroducing the text into Article 7, previously agreed in the small group, on the responsibility of states using and testing nuclear weapons to provide assistance to affected state-parties. It remains unclear why the text was missing from the July 3 draft.
9. John Borrie et al., “A Prohibition on Nuclear Weapons: A Guide to the Issues,” International Law and Policy Institute and UN Institute for Disarmament Research (UNIDIR), February 2016, http://www.unidir.org/files/publications/pdfs/a-prohibition-on-nuclear-weapons-a-guide-to-the-issues-en-647.pdf.
10. See “Compilation of Amendments Received From States on the Revised Draft Submitted by the President Dated 30 June 2017; A/CONF.229/2017/CRP.1/Rev.1,” June 30, 2017, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/06/CRP1_rev1_compilation_30-June-1-2_8pm.docx.
11. See “Complication of Amendments Received From States on the Revised Draft Submitted by the President Dated 27 June 2017; A/CONF.229/2017/CRP.1/Rev.1,” June 29, 2017, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/06/CRP1_rev1_compilation_29-June-2.docx.
12. See Matthew Harries, “The Real Problem With a Nuclear Ban Treaty,” Carnegie Endowment for International Peace, March 15, 2017, http://carnegieendowment.org/2017/03/15/real-problem-with-nuclear-ban-treaty-pub-68286.
13. See Bilahari Kausikan, “Pragmatic Adaptation, Not Grand Strategy, Shaped Singapore’s Foreign Policy,” in Perspectives on the Security of Singapore: The First 50 Years, ed. Barry Desker and Cheng Guan Ang (Singapore: World Scientific Publishing Co., 2016), p. 303.
14. Adam Mount and Richard Nephew, “A Nuclear Weapons Ban Should First Do No Harm to the NPT,” Bulletin of the Atomic Scientists, March 7, 2017, http://thebulletin.org/nuclear-weapons-ban-should-first-do-no-harm-npt10599.
15. John Carlson, “Safeguards Challenges in the Nuclear Weapons Ban,” Arms Control Wonk blog, July 10, 2017, http://www.armscontrolwonk.com/archive/1203571/safeguards-challenges-in-the-nuclear-weapons-ban/.
16. Gaukhar Mukhatzhanova, “Provision for Nuclear-Armed States’ Accession,” in Negotiation of a Nuclear Weapons Prohibition Treaty: Nuts and Bolts of the Ban, UNIDIR, June 2017, pp. 27–34, http://www.unidir.org/files/publications/pdfs/nuts-and-bolts-en-684.pdf.
18. See Sebastian Brixey-Williams, “The Legal Implication of the Nuclear Ban: Separating Fact From Fiction,” Arms Control Wonk blog, May 26, 2017, http://www.armscontrolwonk.com/archive/1203288/brixey-williams-on-the-legal-implications-of-the-nuclear-ban/.
19. U.S. Mission to the United Nations, “Joint Press Statement From the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear Weapons,” July 7, 2017, https://usun.state.gov/remarks/7892.
20. Robert Wood, August 2, 2017, https://twitter.com/USAmbCD/status/892679043279093760.