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June 2, 2022
Features

10th NPT Review Conference: Why It Was Doomed and How It Almost Succeeded


October 2022
By Gaukhar Mukhatzhanova

Widely expected to be a disaster, the 10th review conference of the nuclear Nonproliferation Treaty (NPT) came surprisingly close to adopting a final outcome document. Although most delegations were disappointed with the draft outcome document, which was short on forward-looking disarmament steps, all the states-parties, except Russia, were prepared to join the consensus in an apparent effort to shore up the NPT regime, which has not had an agreed outcome in more than a decade.

Gustavo Zlauvinen (Seated, Center) of Argentina, president of the 10th review conference of the nuclear Nonproliferation Treaty, presides as Japanese Prime Minister Fumio Kishida addresses the conference at the UN on August 1.  (Photo by Angela Weiss/AFP via Getty Images)The conference, originally scheduled for 2020 and repeatedly postponed due to the COVID-19 pandemic, convened in New York on August 1–26 in an extraordinarily difficult international environment. Russia’s invasion of Ukraine had entered its sixth month, and as the conference’s first week drew to a close, news came of the shelling of the Zaporizhzhia nuclear power plant, exacerbating concerns about the risk of a nuclear accident. More than a political backdrop, the war was of direct relevance to treaty implementation and the review conference deliberations, from the violation of security assurances provided to Ukraine when it acceded to the NPT to the safety and security of nuclear facilities and the ability of the International Atomic Energy Agency (IAEA) to continue implementing safeguards in occupied Ukrainian facilities.

The 10th NPT review cycle, which began in 2015, had already been difficult before Russia attacked Ukraine in February 2022. Nuclear-weapon states failed to implement most of the disarmament steps agreed by previous review conferences and signaled continued or growing reliance on nuclear weapons for their security. The crisis in U.S.-Russian arms control turned into near-total collapse while modernization of nuclear arsenals continued in all five nuclear-weapon states and the trend toward overall reduction of global nuclear stockpiles began to reverse.1

There was little reason to expect the review conference to be successful in agreeing on the review of the implementation of the treaty and a set of further measures on disarmament. Why then, on the morning of the last day of the conference, did many delegations believe they were about to adopt by consensus a final document, however underwhelming they found it? Several factors can account for this situation: the surprisingly business-like atmosphere at the conference that raised expectations among the delegates, the relatively low level of engagement by the Russian delegation, and, most importantly, the commitment of the majority of states-parties to achieving an agreed outcome.

Another contributing factor was an early agreement between Egypt and the United States on language regarding the Middle Eastern zone free of weapons of mass destruction (WMD), which quietly settled a usually divisive issue. The text reaffirmed the importance of establishing such a zone and acknowledged the developments in the first two sessions of the new conference process on the Middle East zone established by the UN General Assembly in 2018.2 In the end, however, the NPT review conference failed over the impossibility of reconciling the positions between Ukraine and the West on the one hand and Russia on the other on the war against Ukraine and occupation of its nuclear facilities.

The Rooms Where It Happened

The review cycle was characterized by increasingly acrimonious interactions between some of the key states. It was manifested particularly in the more frequent resort to the right of reply, a practice under conference procedural rules when a delegation takes the floor to respond to (perceived) criticism directed at it by another delegation. Given that relations between Russia and the United States and the European countries continued to deteriorate, there was a risk that once the conference formally convened, it would collapse from the beginning. In the run-up to the review conference, however, U.S. diplomats indicated that, unlike their predecessors from the Trump administration, they had no intention of engaging in multiple rounds of right of reply. For his part, Gustavo Zlauvinen of Argentina, the conference president, used both personal rapport with the delegations and procedural methods to “keep the temperature down.”

A business-like atmosphere was conducive to serious negotiations, but it could not make up for substantive disagreements among states-parties on a wide range of issues. By the middle of the third week of the conference, it became clear that none of the three main committees dealing with disarmament, nonproliferation and regional issues, and the peaceful uses of nuclear technology would be able to agree on substantive reports for inclusion in the final document.

The Russian war in Ukraine and Russian President Vladimir Putin’s nuclear threats have raised concerns about the possibility of the use of tactical nuclear weapons. Russia's short-range Iskander system (9K720), shown here, can carry nuclear warheads. (Photo by Boevaya mashina via Wikimedia Commons)At that stage, Zlauvinen invited a small group of states to conduct parallel negotiations on the disarmament and nonproliferation sections, based on the main committees’ drafts. These negotiations were convened at the Mission of Finland, chaired by Jarmo Viinanen, the Finnish ambassador for arms control. Separately, following the president’s request, Ingeborg Denissen of the Netherlands, the chair of Main Committee III, continued consultations on the peaceful uses section of the outcome document. Additional smaller groups negotiated directly on such matters as the status of the IAEA additional protocol, naval nuclear propulsion, and language addressing North Korea’s nuclear program. Zlauvinen also continued discussions on the draft final document with all the delegations in the closed plenary sessions. All of these processes fed into the revisions of the draft outcome document, the third and final version of which was released on the evening of August 25 and rejected by Russia at the closing plenary the next day.3

The practice of negotiating in small groups away from the conference floor has become a feature of NPT review conferences, but has been criticized for lack of transparency by civil society and smaller delegations who are left out of such groups. Although some of the small group participants, such as Indonesia, briefed other delegations on their involvement, it was difficult to get an accurate picture of where things were for a large number of NPT states-parties, let alone nongovernmental observers. At the same time, the small group approach is the most efficient way to find common language on the more contentious issues. With states-parties as divided as they are, small group negotiations will likely remain a staple of future conferences, but those on the inside should consider ways to keep their counterparts better informed on the progress of such talks.

High Risks and Low Gains

Nuclear disarmament traditionally has dominated the debates at the review conferences. For most non-nuclear-weapon states, the urgency of progress on disarmament has only grown since the most recent conference, in 2015. Nuclear-weapon states, however, point to the deteriorated international security environment as the reason to continue their reliance on nuclear weapons. This fundamental difference in approaches meant that, after days of intensive negotiations in New York, little movement could be made on updating existing commitments on nuclear disarmament, enhancing transparency, and reducing nuclear risks.

Most states-parties believed it was necessary for the conference to express concern about growing nuclear risks and condemn threats of use of nuclear weapons. For European and other Western countries, however, such condemnation was mostly specific to Russia’s rhetoric and nuclear threats issued soon after invading Ukraine, while for most of the developing countries, as well as Austria and Ireland, it was important to condemn all threats of use of nuclear weapons, direct and indirect. The latter group’s concern was that condemning only specific threats in the context of a military conflict would legitimize implicitly the more “general” threats that underlie the policies of nuclear deterrence.

Several states-parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW) proposed to draw on the text of the Vienna Declaration adopted in June 2022, in which they “condemn unequivocally any and all nuclear threats, whether they be explicit or implicit and irrespective of the circumstances.”4 Disappointingly but not surprisingly, the final draft of the outcome document contained no explicit condemnation of any threat of use. Instead, it expressed deep but vague concern that the threat of nuclear weapons use was “higher than at any time since the heights of the Cold War.” The draft document did commit the nuclear-weapon states to implement risk reduction measures, including keeping nuclear forces at the “lowest possible alert levels,” placing the need for such measures in the context of concern over the humanitarian consequences of any nuclear weapons use.

The TPNW itself was once feared to be a potentially contentious point for the review conference, given the fierce opposition from nuclear-weapon states to its negotiation in 2017 and their insistence that the new treaty undermines the NPT. Although disagreements on the TPNW persist, they did not threaten to derail the conference. Well before the conference started, the TPNW states indicated they would not seek to place the ban treaty at the center of the disarmament debates and would rather focus on commitments adopted by past NPT review conferences. Although the TPNW states did propose language recognizing the treaty’s complementarity with the NPT, its contribution to implementing Article VI, and reinforcement of nonproliferation obligations, in the end they were prepared to accept only a short factual reference acknowledging the existence of the treaty and its entry into force.

It was important for this review conference to reaffirm the validity of commitments agreed by past conferences, including the 2010 action plan and the 13 practical steps for nuclear disarmament adopted in 2000. The central point of the debate on past commitments, however, was the need to build on them. The African Group, Austria, Colombia, Costa Rica, Ireland, Malaysia, Mexico, Philippines, Switzerland, and Thailand, among others, called for the adoption of specific benchmarks, timelines, and targets on disarmament to better measure progress in the future. That said, the non-nuclear-weapon states made few if any specific proposals on such quantitative targets and timelines, while the nuclear-weapon states rejected the idea of benchmarks and measurability altogether. The final draft of the outcome document contained only one time-bound disarmament-related commitment, for the United States and Russia to pursue negotiations on a “successor framework” for deeper, irreversible arms reductions before the expiration of the New Strategic Arms Reduction Treaty in 2026.

The lack of implementation of past commitments and resistance to establishing benchmarks for progress undermine the credibility of the review process. Enhanced accountability on nuclear disarmament was one of the key points of debate on the indefinite extension of the NPT in 1995 and lies at the basis of decisions on strengthening the review process and principles and objectives for nuclear nonproliferation and disarmament that were adopted together with the decision to extend the treaty indefinitely.5 More than a quarter century later, non-nuclear-weapon states would be right to question if the strengthened review serves its purpose when “looking forward” amounts to reaffirmation of measures previously agreed but not implemented.6 The conference agreed to establish a working group on further strengthening the review process, and states-parties should take this opportunity to critically review the current structure and ways to make it more efficient and fair.7

No Common Ground

Perhaps the biggest question ahead of the conference was how it would address the war in Ukraine in general and its nuclear aspects in particular. During the general debate, many states-parties condemned Russia’s invasion of Ukraine and threats to use nuclear weapons.8 As the situation at the Zaporizhzhia nuclear plant deteriorated, many states also expressed concern about the safety and security of Ukraine’s nuclear facilities and argued that the conference document should reflect these concerns and call on Russia to return the occupied facilities to Ukrainian control. Russia hit back with accusations that Ukraine itself, with support from NATO states, was shelling the power plant.

As the situation at the Zaporizhzhia nuclear power plant deteriorated, many states-parties at the 10th review conference of the nuclear Nonproliferation Treaty expressed concern about the safety and security of this and other nuclear facilities in Ukraine. (Photo by STRINGER/AFP via Getty Images)On the conference floor, Russia’s reaction to any text referencing Ukraine’s nuclear facilities was to request its deletion. Speaking in Main Committee III, the Russian representative argued that any paragraph on Ukraine, however “nominally neutral,” would provoke acrimonious debates that would “destroy any chance for consensus” and therefore the best solution would be to delete all such paragraphs.9 Many states objected to such proposals, and the paragraphs addressing the situation at Ukraine’s nuclear facilities remained, with some changes, in the draft texts until the end. The one notable change during the final days of the conference was the appearance and then removal of a direct reference to Russia, calling on it to return control over the nuclear facilities to Ukraine.

Because several delegations who had concerns with specific formulations in the draft document engaged directly with Zlauvinen and each other to find compromise language until the final draft was issued on August 25, the lack of change in the text on Ukraine seemed to suggest there was agreement on it. It was only on the afternoon of August 26, when it was too late to negotiate, that Russia brought a set of proposed amendments to the president, leading Russia to break the consensus.

There are different possible explanations why events unfolded this way. It appears that Russia concluded early that there could be no middle ground between it and Ukraine, the United States, and the European countries and that it was never going to accept a document with any reference to Ukraine. Russia apparently did not seek direct consultations with other delegations to look for a compromise language on the subject. Some of the diplomats involved in the small-room negotiations also remarked on the relatively low level of engagement by the Russian delegation on other issues. It would suggest that Russia did not treat achieving an agreed outcome as a high priority.

Loathe to be completely isolated, Russia seemed to have been biding its time, perhaps expecting the conference to collapse on other issues. When by the morning of the last day no other state conveyed an intent to reject the final document, however, Russia had no choice but to act alone. Even then, speaking at the closing plenary, the Russian representative argued that there were “many other delegations” unhappy enough to object to the document. Statements over the next several hours proved him wrong.

Questions Ahead

The amount of hard work put into the preparations and negotiations at the 10th review conference and how close it came to an agreement despite the difficult circumstances and low expectations are a testament to the commitment of the NPT states-parties. Non-nuclear-weapon states were prepared to adopt the final document not because it delivered significant progress on disarmament but because they recognized that the moment required unity and continued faith in the regime. This was the second time in a row that the non-nuclear-weapon states were willing to set aside their disappointment with the final document for the sake of an agreed outcome, something the nuclear-weapon states should not take for granted.

A review conference without an agreed outcome would not precipitate a dramatic collapse of the regime, but there will be more questions in coming months and years about the meaning and purpose of the process and the degree to which states-parties wish to participate and commit resources to it. The first preparatory committee meeting of the next review cycle is due to take place in 2023, and it is difficult to foresee much positive energy there. In the meantime, more states are likely to be drawn to the TPNW, at least as observers to the meetings of states-parties. Closer engagement between TPNW and non-TPNW states could benefit the dialogue on nuclear risks, the humanitarian consequences of nuclear weapons use, and victim assistance, and put pressure on the NPT and nuclear-weapon states to deliver on agreed commitments.

 

ENDNOTES

1. For information on nuclear weapon stockpiles and modernization, see Stockholm International Peace Research Institute, “Global Nuclear Arsenals Are Expected to Grow as State Continue to Modernize—New SIPRI Yearbook Out Now,” June 13, 2022, https://sipri.org/media/press-release/2022/global-nuclear-arsenals-are-expected-grow-states-continue-modernize-new-sipri-yearbook-out-now; Federation of American Scientists, “Status of World Nuclear Forces,” n.d., https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/ (accessed September 17, 2022).

2. For more information on the Middle East zone conference, see UN Office for Disarmament Affairs, “Conference on the Establishment of a Middle East Zone Free of Nuclear Weapons and Other Weapons of Mass Destruction: Overview,” n.d., https://meetings.unoda.org/meeting/me-nwmdfz-2019/ (accessed September 17, 2022).

3. Draft final report of the conference, along with the draft reports of the Main Committees and Subsidiary Bodies, can be accessed on the Reaching Critical Will website, https://reachingcriticalwill.org/disarmament-fora/npt/2022/documents.

4. First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Draft Vienna Declaration of the 1st Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons: ‘Our Commitment to a World Free of Nuclear Weapons,’” TPNW/MSP/2022/CRP.8, June 23, 2022, para 4.

5. See Jayantha Dhanapala and Randy Rydell, “Multilateral Diplomacy and the NPT: An Insider’s Account,” UN Institute for Disarmament Research, UNIDIR/2005/3, 2005, p. 36, https://www.unidir.org/sites/default/files/publication/pdfs/multilateral-diplomacy-and-the-npt-an-insider-s-account-323.pdf; Michal Onderco and Leopoldo Nuti, eds., “Extending the NPT? A Critical Oral History of the 1995 Review and Extension Conference,” Woodrow Wilson International Center for Scholars, 2020, https://www.wilsoncenter.org/sites/default/files/media/uploads/documents/Extending%20the%20NPT%20-%20A%20Critical%20Oral%20History%20of%20the%201995%20Review%20and%20Extension%20Conference.pdf.

6. Decision 1 of the 1995 NPT Review and Extension Conference mandates that “Review Conferences should look forward as well as back,” meaning that they should not only review the implementation of the treaty but also identify areas and means for making progress in the future. 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Document: Part I, Organization and Work of the Conference,” NPT/CONF.1995/32 (Part 1), 1995, p. 8.

7. Although it was initially part of the draft final document, conference president Gustavo Zlauvinen was able to get an agreement on a separate decision to establish the working group.

8. For a detailed review of the general debate, see Ray Acheson and Allison Pytlak, eds., NPT News in Review, Vol. 17, No. 2 (August 4, 2022), https://reachingcriticalwill.org/images/documents/Disarmament-fora/npt/NIR2022/NIR17.2.pdf.

9. Remarks at the ninth meeting of Main Committee 3 on August 18, 2022, https://media.un.org/en/asset/k1e/k1e5mw8k13.


Gaukhar Mukhatzhanova is director of the International Organizations and Nonproliferation Program at the Vienna Center for Disarmament and Non-Proliferation.

It appears that Russia concluded early that there could be no middle ground on Ukraine.

Mexico’s Bold Move Against Gun Companies


September 2022
By Wilma Gandoy Vázquez and Ximena García Hidalgo

Of 193 member states of the United Nations, Mexico has the fifth-largest number of unregistered firearms in civilian hands, behind the United States, India, China, and Pakistan.1 This availability of firearms and the violence it enables have major destructive consequences. In Mexico, guns are the weapon of choice in 70 percent of total homicides and 60 percent of homicides committed against women. Guns are also the main tool in homicides of young people.

This cache of .50 caliber rifles, which were seized from criminals or voluntarily handed over to Mexican authorities, was destroyed at Military Camp 1-A in Mexico City in August 2017. According to data from the Mexican Defense Ministry, from July 24 to July 31 that year, a total of 17,769 firearms were destroyed at various military camps around the country. (Photo by Bernardo Montoya/AFP via Getty Images)Gun violence is so pervasive that it has stagnated the growth in life expectancy of the Mexican population in general and, between 2005 and 2010, reduced the life expectancy of males by about 0.6 years.2 In addition to deaths and injuries, gun violence forces people to leave their homes and even flee to other countries without proper documentation. It limits day-to-day mobility by making people afraid to use public spaces and increases school dropout rates and gender violence. Around 40 percent of the population has heard or seen shootings frequently. Mexicans live most of their lives in fear.

In addition to the human carnage, the price of gun violence is felt economically. It has upended the functioning of major Mexican industries such as agriculture, tourism, and transportation; increased the cost of products and services; decreased the value of real estate; curtailed investment; and changed consumption and savings patterns. According to one estimate, the economic damage caused by violence amounts to 21 percent of the country’s gross domestic product.3 The resources that Mexico allocates to deal with the consequences of gun violence are no longer invested in development projects or social programs. Mexico is swamped by millions of handguns and military-style rifles, compromising its future and the well-being of its people.

As a result, the Mexican government has embarked on a comprehensive strategy to reduce arms trafficking and the violence it produces. In order to include corporate responsibility in its strategy, Mexico took an unprecedented and bold act: it filed a lawsuit against U.S. arms manufacturers and distributors who are responsible for facilitating the trafficking of firearms into Mexican territory through negligent and illegal business practices.

Compared to other countries, Mexico participates modestly in the manufacture and production of firearms, and private gun ownership is significantly restricted. Semi-automatic pistols higher than .380 caliber and all firearms using .223 caliber are prohibited. To receive a one-year gun permit, individuals must pass a background check. There is only one gun store in the country, run by the Mexican army, which sells about 38 guns a day. This means that almost all unregistered firearms in circulation in Mexico entered through illicit trafficking.

A man looks at the site where an armed group executed six people inside an addiction clinic in San Pedro Tlaquepaque, state of Jalisco, Mexico, on July 25. (Photo by Ulises Ruiz/AFP via Getty Images)Researchers have estimated that at least half a million firearms are trafficked each year from the United States.4 According to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, about 70 percent of the firearms seized at crime scenes in Mexico are traced to the United States.5 Many of these weapons are military grade and wreak remarkable havoc. Between March 2009 and March 2021, criminal groups used firearms trafficked from the United States to kill 25 members of the Mexican army and wound 84 others. Between 2006 and 2021, trafficked firearms were used to kill 415 federal police and National Guard members, in addition to wounding 840 more. In 2019, more than 3.9 million crimes in Mexico were committed with a gun traced to the United States.6 Between 2015 and 2021, at least 140,000 civilians were killed with a firearm in Mexico.

This catastrophic situation is no accident. Through negligent and illicit business practices, the U.S. gun industry has built a permanent infrastructure that provides easy access to firearms for traffickers and, consequently, members of organized crime in Mexico. According to one research report, in 2012, nearly 47 percent of firearm dealers licensed by the U.S. government depended for their economic existence on some amount of demand from Mexico-related weapons trafficking.7 Although this trade takes place in nearly every state in the United States, many gun dealers have established themselves close to the Mexican border to meet the traffickers’ demands. Between 2010 and 2019, the number of gun stores in border states grew by 18 percent, while in nonborder states it increased by 1.8 percent. Currently, 18 percent of all licensed U.S. gun dealers are located in states bordering Mexico.8

A Lucrative Gun Trade

In 2021, specialists who collaborate with the Mexican Ministry of Foreign Affairs estimated the annual value of guns trafficked from the United States at more than $250 million.9 Some journalists and activists believe the problem lies with customs authorities, who overlook the magnitude of the border dynamics and the fact that any policy applied to strengthen border security would be insufficient if the arms industry does not change its business practices, which fuel the arms trafficking phenomenon.

One article posits that the first step in reducing gun trafficking into Mexico lies in focusing on legal sales.10 Guns are very different from other products because they generate their own demand. If more guns are available, insecurity increases and with it the demand for more guns. Therefore, reducing the supply of firearms is a viable policy to reduce demand. That would cause changes in the supply chain that would make it more difficult and more expensive for criminal groups to obtain firearms from the United States. If these criminal groups have less access to firepower, authorities could more feasibly tackle illegal activities such as drug trafficking.

The civil lawsuit filed by the Mexican government has its origin in an unfortunate event. On August 3, 2019, a white supremacist drove to a supermarket in El Paso, Texas, with the objective of exterminating “as many Mexicans as possible.” He killed 23 people and injured 23 others. A subsequent investigation by the Mexican Foreign Affairs Ministry identified a common denominator between the El Paso shooting and violence caused by the availability of firearms in Mexico: gun manufacturers and distributors engaging in negligent and illegal business practices that facilitated their products ending up in the hands of the wrong people.11

People take part in a ‘Walk for Peace’ to ask for a stop to violence, extortions, executions, and disappearances of people in Mexico, in Guadalajara, Mexico, on July 31. (Photo by Ulises Ruiz/AFP via Getty Images)These commercial practices include refusing to design firearms with mechanisms that prevent their use by unauthorized persons, thus making them useful and attractive to organized crime. In addition, although their products are supposed to be oriented to the civilian market, gun manufacturers use in their advertising the images, symbols, and language of military combat, characteristics that attract organized crime groups. Finally, their distribution systems allow sales without controls or inventories, thus allowing for thefts and losses, as well as multiple sales and “straw purchases.”12

Through tracing requests from authorities and governmental reports, companies are fully aware that their firearms are disproportionately used in the commission of crimes in Mexico. Although they have the power to prevent the transfer of their products to the criminal market by adopting easy, inexpensive measures that have already been tried, these companies prefer to continue those negligent, illegal commercial practices to maintain their profits.13

After two years of researching, the Mexican government filed suit in U.S. district court in Massachusetts on August 4, 2021. The defendants are familiar names: Smith & Wesson; Barrett; Beretta; Century International Arms; Colt; Glock; Sturm, Ruger & Co; and Witmer Public Safety/Interstate Arms. The suit’s main arguments are that by becoming members of the gun industry, the defendant companies acquired a responsibility to follow all relevant laws related to their activities, as well as to comply with the highest standards of care, such as Mexican gun import laws, U.S. gun export laws, Mexican and U.S. tort laws, and U.S. federal and state gun laws, and that the failure to comply with these responsibilities has caused massive harm to Mexico and its people.

Based on these premises, the Mexican government sued the companies for general negligence because the traffickers were able to obtain high-capacity firearms, ammunition, and magazines as a result of negligent marketing, distribution, and sales practices by firearms producers, distributors, and sellers and also for negligence per se, an exception to the U.S. Protection of Lawful Commerce in Arms Act (PLCAA) that applies when sellers violate any law in the sale of a gun.

The government claims public nuisance based on the evidence that dealers have engaged in “straw sales” and multiple sales, and despite knowing or having to know about this practice, gun producers and distributors have continued to supply guns to these dealers. In addition, Mexico invokes the predicate statute, which operates when a supplier or seller is shown to violate a law related to the sale or marketing of arms and the violation of local laws. The lawsuit further argues that the sale of assault firearms to the public is a violation of the U.S. National Firearms Act, which prohibits automatic firearms because they can be easily converted into assault firearms.14

The Mexican government asserts that the PLCAA, the law granting immunity to the firearms industry, does not apply to its lawsuit because the damages occur outside the United States and because, given the negligent or illegal conduct of the defendants, several exceptions to such procedural immunity are activated in this case.15

The Mexican government asks the court to require the defendants to abate and remedy the public nuisance they have created and to create and implement standards to reasonably monitor and discipline their distribution systems. The suit also demands that gun manufacturers incorporate all reasonably available safety mechanisms into their guns, including devices to prevent use by unauthorized users, and that they fund studies, programs, advertising campaigns, and other events focused on preventing unlawful trafficking of guns. Finally, the suit requests that the defendants take all necessary action to abate the current and future harm that their conduct is causing and would otherwise cause in Mexico. It asks that the court grant damages, civil penalties, restitution, and disgorgement of the defendants' profits to the Mexican government.16

Gun Industry Dismissal Request

The case marks the first time that a foreign country has sued members of the firearms industry in a U.S. court. The companies filed their responses to the lawsuit on November 22, 2021. By means of a joint memorandum of law and individual memorandums, they ask the court to grant their motion to dismiss the complaint. Their main arguments are that the PLCAA grants them immunity from civil suits, that the Mexican government does not have standing to sue the companies, and that the companies are not subject to the court's jurisdiction because they do not have sufficient ties to Massachusetts.

In addition, the companies assert that there are too many intermediate steps between the damage in Mexico cited in the lawsuit and the actions of the companies, that the companies have no legal obligation to protect Mexico from the criminal misuse of their products in Mexican territory, and that the Mexican government is responsible for preventing the damages it claims. The defendants’ main objective in filing a motion to dismiss the complaint is to prevent the lawsuit from moving forward and reaching the discovery stage.

A bullet hole is seen on the door of a restaurant close to the site where four radio station workers were killed in Ciudad Juarez, state of Chihuahua, Mexico, on August 12. (Photo by Herika Martinez/AFP via Getty Images)In January 2022, the Mexican government filed its response to the defendants' motion to dismiss the complaint. It argues that because the injury occurs in Mexican territory, the substantive law that applies to this lawsuit is Mexican law and that the immunities granted by the PLCAA do not apply in this case. The government states that the complaint adequately describes how the companies violate their legal obligations and thereby create public nuisance in Mexico.

The government argues that neither international law nor custom preclude it from suing the companies in U.S. courts, that the district court in Massachusetts can hear the case because the defendants participate in the economic life and carry out business transactions in the state that result in damages in Mexico, that the progress of the case in the district court is not particularly onerous or unusual for the companies, and that what is being claimed are negligent and illegal business practices, not the criminal use of the firearms manufactured or distributed by the companies. In addition, the government submitted a report on Mexican tort law and a report by expert economists that calculated the number of firearms produced or sold in Massachusetts and trafficked into Mexico. According to the latter document, between 2011 and 2020, the total number of guns from defendant manufacturing companies linked to Massachusetts and trafficked to Mexico ranged from 68,552 to 250,214.17

In support of the lawsuit, groups from various countries submitted amicus curiae briefs. Attorneys general from 14 U.S. states explain that when the PLCAA was drafted, the U.S. Congress did not make the gun industry immune in cases in which its own conduct violated laws regulating the sale and marketing of guns. They also say that the Mexican government plausibly alleged that the companies' business practices violate the Connecticut Unfair Trade Practices Act and the Massachusetts Consumer Protection Act. District attorneys from 27 U.S. counties assert that careless gun sales and the gun trafficking to Mexico facilitated by these companies are having a direct impact on their communities by promoting drug trafficking and violence.

In another brief, 16 law professors from U.S. universities agree that the immunity granted by the PLCAA to members of the arms industry does not apply in this case and that international law recognizes the authority of a state to apply its tort law to conduct outside its territory that causes it substantial harm. Professors of international law from European universities also weigh in, asserting that public international law and conflict of law rules do not prohibit foreign law from being applied in a tort liability case against U.S. companies for damages they cause abroad.

Several leading U.S. gun violence prevention organizations also make a case that Massachusetts law allows Mexico’s lawsuit to be heard. The governments of Belize and Antigua and Barbuda, as well as SEHLAC, an international organization focused on security, describe the gun violence situation afflicting Latin America and the Caribbean and emphasize that the remedies sought by Mexico are simple measures that could drastically reduce gun violence in the region. Finally, Mexican academics, activists, victims, and experts vividly describe the ravages of gun trafficking in Mexico.18

On March 14, the companies responded to the court filings, asking that Mexico's request for discovery be denied. The Mexican government asked the court for authorization to file a sur-reply, which points out that the companies rejected the application of Mexican law without offering a legal analysis as to which tort law should be used to analyze this case. The government asserts that legal practice and international law establish that the applicable law is that of the place where the damage occurs and that the application of Mexican law in tort liability matters is not inconsistent with any public policy of Massachusetts or the United States.

On April 12, the parties presented oral arguments before Chief Judge Dennis Saylor through a videoconference. The hearing did not discuss substantive issues of the case, but the arguments related to the standing of the Mexican government, the scope of the PLCAA, and the jurisdiction of the U.S. district court. The judge's questions helped clarify that the legal arguments in the lawsuit are specific to the Mexican case. They also clarified that the Mexican government did not sue the companies because firearms were used to commit crimes, but rather the lawsuit is about the defendants knowing that their products are being trafficked to criminal groups in Mexico and making decisions that facilitate the trafficking.

On June 9, the Mexican government filed a notice of supplemental authority to the court, stemming from developments in National Shooting Sports Foundation v. James. In that case, the gun industry representative challenged a New York statute making it possible to hold gun manufacturers liable for knowingly or recklessly creating or contributing to endangering residents' public safety. The notice points out that several of the foundation’s arguments related to extraterritoriality and applicability of the law, as well as the scope of the PLCAA and separation of powers, are in line with the Mexican government's positions in its lawsuit. Four months after the hearing, the judge has not issued a decision. Whichever party falls short is expected to appeal, and the litigation will continue in the U.S. Court of Appeals for the First Circuit.

A Comprehensive Strategy

In parallel to the lawsuit, Mexico has continued its strategy to combat arms trafficking. At the national level, it created the National Customs Agency, and all civilian customs personnel will be replaced by members of the Ministry of National Defense by 2023. At the bilateral level, Mexico signed the Bicentennial Agreement with the United States, which gives special attention to achieving tangible results in the fight against arms trafficking. It also has approached the European Union to invite its members to take responsibility for their firearms companies operating in the United States, emphasizing their duty to protect human rights as EU laws require.

At the international level, Mexico has taken actions in the most important mechanisms and institutions that help control and regulate firearms, such as the Arms Trade Treaty, the Firearms Working Group of the Conference of States Parties to the Convention Against Transnational Organized Crime, and the Inter-American Convention Against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. In the UN Security Council, Mexico led the adoption of Resolution 2616, which recognizes that the diversion of small arms and light weapons is a threat to peace and security.19 In the UN Commission on Narcotic Drugs, Mexico was central to the approval of a resolution that recognizes the link between arms trafficking and drug trafficking.

Through novel arguments and new interpretations of the laws regulating the gun industry, the civil lawsuit seeks to include one of the most powerful actors in the solution to gun violence. Companies have the ability to define the design of their products and the way they advertise, distribute, and sell them. They also have the most extensive and updated information on purchasing patterns to identify transfers to the illicit market. Because of this, more initiatives are emerging in the United States to hold the firearms industry accountable, such as California’s AB1594 law, New York’s S.7196/A.6762 law, and the establishment of an office in New Jersey to bring legal action against gun manufacturers, dealers, and sellers.

In this chaotic 21st century, the COVID-19 pandemic has demonstrated the importance of the role of the state in protecting the lives of its population. With this civil lawsuit against gun companies that facilitate gun trafficking into its territory, the Mexican government is attempting to fulfill its legal and moral obligation to defend its people. This bold and innovative action has the potential to save thousands of lives and change the landscape of gun violence across the Americas.

 

ENDNOTES

1. Small Arms Survey, “Civilian Firearms Holdings, 2017,” n.d., https://www.smallarmssurvey.org/sites/default/files/resources/SAS-BP-Civilian-held-firearms-annexe.pdf.

2. José Manuel Aburto et al., “Homicides in Mexico Reversed Life Expectancy Gains for Men and Slowed Them for Women, 2000–10,” Health Affairs, Vol. 35, No. 1 (January 2016): 88-95.

3. Institute for Economics & Peace, “Mexico Peace Index 2022,” IEP Report, No. 85 (May 2022), https://www.visionofhumanity.org/wp-content/uploads/2022/05/ENG-MPI-2022-web.pdf.

4. On August 4, 2022, the Mexican Ministry of Foreign Affairs published a repository with relevant documents and articles on the litigation. For documents submitted to the court by Mexico, including the complaint, see Gobierno de México, “SRE - Acervo Histórico Diplomático,” August 3, 2022, https://portales.sre.gob.mx/acervo/litigio-del-gobierno-de-mexico/379.

5. U.S. Government Accountability Office, “U.S. Efforts to Combat Firearms Trafficking to Mexico Have Improved, but Some Collaboration Challenges Remain,” GAO-16-223, January 2016, https://www.gao.gov/assets/gao-16-223.pdf; U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, “Firearms Trace Data: Mexico - 2015-2020,” November 16, 2021, https://www.atf.gov/resource-center/firearms-trace-data-mexico-2015-2020.

6. Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., et al., No. 21-11269 (Dist. Ct. Mass., August 4, 2021).

7. Topher McDougal et al., “The Way of the Gun: Estimating Firearms Traffic Across the U.S.-Mexico Border,” University of San Diego Trans-Border Institute and Igarapé Institute, March 2013, p. 2, https://catcher.sandiego.edu/items/peacestudies/way_of_the_gun.pdf.

8. Bureau of Alcohol, Tobacco, Firearms and Explosives, “Federal Firearms Listings,” https://www.atf.gov/firearms/listing-federal-firearms-licensees.

9. Estados Unidos Mexicanos v. Smith & Wesson Brands.

10. Robert Muggah and Topher McDougal, “Why a ‘Great Wall’ Won’t Stop the Cross-Border Gun Trade,” Americas Quarterly, April 26, 2017, https://americasquarterly.org/fulltextarticle/why-a-great-wall-wont-stop-the-cross-border-gun-trade/.

11. For further information on the Mexican government’s reasoning behind the lawsuit, see Alejandro Celorio, “Mexico Is Tired of U.S. Guns Bloodying Our Streets. That’s Why We Are Suing Manufacturers,” The Washington Post, August 14, 2021.

12. Estados Unidos Mexicanos v. Smith & Wesson Brands.

13. Several of these measures were part of an agreement between Smith & Wesson and the Clinton administration in March 2000. Office of the Press Secretary, The White House, “Clinton Administration Reaches Historic Agreement With Smith and Wesson,” March 17, 2000.

14. Estados Unidos Mexicanos v. Smith & Wesson Brands.

15. For an in-depth explanation on the Mexican government’s position on the PLCAA, see Jindan-Karena Mann, “Mexico v. Smith & Wesson: How Should US Courts Approach the Issue of Proximate Cause in Tort Cases Against Gun Manufacturers?” Rethinking Slic, May 26, 2022, https://rethinkingslic.org/blog/tort-law/153-mexico-v-smith-wesson-how-should-us-courts-approach-the-issue-of-proximate-cause-in-tort-cases-against-gun-manufacturers.

16. Estados Unidos Mexicanos v. Smith & Wesson Brands.

17. See Gobierno de México, “SRE - Acervo Histórico Diplomático.”

18. For the amicus curiae briefs, see Gobierno de México, “SRE - Acervo Histórico Diplomático.”

19. UN Security Council, S/RES/2616, December 22, 2021.


Wilma Gandoy Vázquez, a member of the Mexican Foreign Service, and Ximena García Hidalgo, an international affairs specialist, are members of the team in the Head Legal Advisor’s Office at the Mexican Ministry of Foreign Affairs that is working on the government’s lawsuit against firearms companies in the United States. The authors’ opinions are their own and may not reflect the position of the government of Mexico.

One government mounts an innovative legal challenge to a powerful industry in an effort to protect its citizens.

The First TPNW Meeting and the Future of the Nuclear Ban Treaty


September 2022
By Rebecca Davis Gibbons and Stephen Herzog

As diplomats, activists, and researchers converged on Vienna in June for the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW), recent tragic world events highlighted how critical it was to convene this multilateral forum on nuclear disarmament.

At the conclusion of the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW) on June 23, questions from the press were fielded by (L) Beatrice Fihn of ICAN; Laurent Gisel, head of the arms and conduct of hostilities unit in the legal division of the International Committee of the Red Cross; and Alexander Kmentt, TPNW conference president. (Photo courtesy of UNIS Vienna)Since February, Russia’s war against Ukraine has epitomized the grave dangers of a world where nine states possess approximately 12,700 nuclear weapons.1 That Russia could invade a sovereign state and indiscriminately target its civilian population, while using nuclear threats to deter NATO from intervening, has stunned the world. It offers a stark reminder that possessing nuclear arms can enable abhorrent violations of international law.2

Russian President Vladimir Putin’s aggression and nuclear threats are the most egregious recent activities by a nuclear weapons possessor, but they are hardly the only transgressions. Nuclear-armed states continue to emphasize these weapons in their national security doctrines by pursuing new capabilities and modernization programs and by increasing their numbers of warheads. In other words, the five countries designated as nuclear-weapon states under the nuclear Nonproliferation Treaty (NPT) (China, France, Russia, the United Kingdom, and the United States) do not appear to be taking effective measures toward fulfilling their NPT Article VI disarmament commitments. Disappointment over a lack of progress in this area led diplomats and activists to pursue creation and ratification of the TPNW in the first place.3

The TPNW, which entered into force in January 2021 and is popularly known as the nuclear ban treaty, prohibits all nuclear weapons activities, including building, testing, possessing, transferring, helping others develop, and threatening the use of nuclear arms.4 The first meeting of states-parties originally was scheduled for January 2022, but was delayed by the COVID-19 pandemic, as were most other nuclear-related multilateral gatherings. By the time the meeting convened at the UN office in Vienna on June 21–23, the TPNW boasted 66 states-parties. Thirty-four other interested countries attended as observers.

Despite successful consolidation of the TPNW’s entry into force and progress toward developing policies for treaty implementation at the meeting, major challenges loom for this new fixture of the global nuclear order. Treaty proponents face the twin tasks of building effective treaty infrastructure and convincing additional states to join. These tasks may prove difficult in the short term. To be sure, policymakers and publics alike are waking up to nuclear risks due to media coverage of Russian threats and aggressive behavior. For some countries, this means increased interest about acquiring nuclear security guarantees for protection. Yet, if the unacceptable risks and consequences of nuclear deterrence become the dominant long-term narrative, a groundswell of support for the TPNW and nuclear disarmament could eventually emerge.

Implementing a Global Nuclear Weapons Ban

Before the meeting of states-parties, Austria hosted the Vienna Conference on the Humanitarian Impacts of Nuclear Weapons, which featured testimonials of nuclear explosion survivors alongside panel discussions and presentations on new scientific research about the devastating effects of nuclear weapons use. This event on June 20 marked the fourth such conference, following three others in 2013 and 2014, in Oslo; Nayarit, Mexico; and Vienna. They paved the way for the TPNW by educating diplomats on the impacts of nuclear weapons use on humans, their communities, and the environment.

The formal meeting of states-parties followed, with Austrian diplomat Alexander Kmentt, president of the proceedings, arguing that the TPNW is needed now more than ever and represents the world’s only nuclear trend moving in the right direction. UN Secretary-General António Guterres offered support by video, stating that “we must stop knocking on doomsday’s door” and “let’s eliminate these weapons before they eliminate us.” Statements from several political leaders came next, as well as from Peter Maurer, president of the International Committee of the Red Cross; Beatrice Fihn, executive director of the International Campaign to Abolish Nuclear Weapons (ICAN); and Karipbek Kuyukov, a survivor affected by Soviet nuclear testing in Semipalatinsk, Kazakhstan.

Because there were only three days of proceedings, the participants had negotiated in advance much of the language released in the meeting’s final declaration and action plan.5 Nevertheless, delegations debated numerous topics related to treaty implementation that would form the 50-point action plan, including how to persuade more countries to join the treaty, set timelines for eliminating nuclear arsenals after nuclear-armed states join the TPNW, establish the disarmament verification body, and put into practice the accord’s positive obligations.

Demonstrators outside the U.S. Mission to the United Nations on Aug. 2 carried a message for Washington as delegates to the 10th Review Conference for the nuclear Nonproliferation Treaty met across the street at the United Nations.  (Photo credit: ICAN/Seth Shelden)Much discussion centered on Article 12, which calls for states-parties to “encourage” all other states to join the treaty “with the goal of universal adherence.” Member-states Austria and Costa Rica, alongside observer Indonesia, submitted a working paper with suggestions for implementation.6 During debate, several states expressed the need to go beyond seeking additional state ratifications and advocated for global, public educational efforts on the treaty and the effects of nuclear weapons use. The action plan calls on states-parties to establish national coordinators for Article 12 universalization efforts within 60 days and lays out the means to promote the treaty and its norms. These tools include démarches, outreach meetings, international conferences and workshops, UN General Assembly resolutions, and high-level official statements. The action plan notes that states-parties should emphasize dialogue and the humanitarian argument behind the treaty when engaging with states “that for the moment remain committed to nuclear weapons and nuclear deterrence.”

Another important issue concerned Article 4, stipulating the conditions for eliminating nuclear weapons. Before the Vienna meeting, this language did not specify a timeline by which nuclear-armed states that join the TPNW must do so. South Africa, the only state that has given up an indigenously developed nuclear arsenal, took the lead by holding consultations before the meeting and presenting a working paper.7 Subsequently, states-parties agreed to a 10-year window for nuclear weapons dismantlement, but allowed for possible extensions. They also decided that states that host forward-deployed nuclear weapons must remove them within 90 days after their accession to the TPNW.8

Article 4 also calls for members to “designate a competent international authority or authorities to negotiate and verify the irreversible elimination of nuclear-weapons programmes.” Mexico, with support from observer state Brazil, suggested that each country send a representative to an intersessional committee to examine the possibility further, and this was incorporated into the action plan.

Kazakhstan and Kiribati, as states deeply affected by the horrific legacy of nuclear testing, led consultations on Articles 6 and 7 of the treaty.9 These articles address two key positive treaty obligations: assistance for victims of nuclear use and testing and environmental remediation for areas affected by nuclear weapons use.10 The consultations resulted in several actions, including consideration of the feasibility of an international trust fund to support those harmed by nuclear weapons use.

On the final day of the conference, the parties made plans to establish expert consultative bodies. They created a scientific advisory group of up to 15 individuals to provide technical advice for treaty implementation and agreed to appoint an informal facilitator to focus on the TPNW’s complementarity with other nuclear treaties. The treaty members asked Ireland and Thailand to lead these activities following the countries’ working paper on the topic.11

To conduct treaty implementation work in the two years prior to the next meeting, states-parties established a coordination committee. It will meet at least quarterly and involve Kmentt, the next president-designate, chairs of informal committees on universalization and victim assistance and environmental remediation, and competent international authorities. ICAN and Red Cross representatives will observe. This intersessional process will ensure treaty implementation tasks continue between meetings of states-parties.

In addition to the action plan, states-parties consented to the Vienna declaration. This four-page document stresses the moral and humanitarian motivations underlying the treaty and voices significant concern about the nuclear weapons possessed by the five NPT-recognized nuclear-weapon states and four other nuclear-armed states outside the NPT: India, Israel, North Korea, and Pakistan. The declaration is unequivocal in its critique of nuclear weapons and nuclear deterrence; it expresses support for the goals of the TPNW and its full implementation.

The Vienna declaration also condemns nuclear threats in strong terms without naming specific states while hinting at recent Russian actions. It reads, “We are alarmed and dismayed by threats to use nuclear weapons and increasingly strident nuclear rhetoric. We stress that any use or threat of use of nuclear weapons is a violation of international law, including the Charter of the United Nations. We condemn unequivocally any and all nuclear threats, whether they be explicit or implicit and irrespective of the circumstances.”

The declaration further criticizes nuclear-armed states that have tried to pressure non-nuclear-weapon states not to join the treaty, an implicit reference to the NATO nuclear powers France, the UK, and the United States.

Unlike the nuclear-armed states and those under their protection, the declaration rejects nuclear deterrence and “the fallacy of nuclear deterrence doctrines.” It asserts that the goal of states-parties is to stigmatize and delegitimize these weapons and to “harness the public conscience in support of our goal of universal adherence to the Treaty and its full implementation.”

Finally, the declaration recognizes the global importance of the NPT, “[deploring] threats or actions that risk undermining it.”

States-Parties, Observers, and Nonparticipants

The 66 parties to the TPNW represent a broad cross-section of the international community, including states from Africa, Asia, Europe, the Middle East, North and South America, and Oceania. Their geographic diversity showcases the global appeal of nuclear disarmament and dissatisfaction with stalled progress fulfilling NPT Article VI. There was also a large international civil society presence in Vienna because nuclear weapons use would affect all people and the presence of nongovernmental organizations was mandated specifically by the TPNW.

Before the states-parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW) held their first meeting in Vienna in June, civil society groups and anti-nuclear activists gathered there to discuss the humanitarian impacts of nuclear war. On this panel, representatives of Pacific nations discussed how they are banning together to protect their neighbors from nuclear threats. (Photo by Alexander Papis of ICAN)The 34 nonmember states that observed the Vienna proceedings included those intending to ratify the treaty, those not planning to join, and those still undecided. Among the observers were Brazil, the Democratic Republic of the Congo, Indonesia, Libya, the Marshall Islands, Morocco, Nepal, and Switzerland, each of which had varied perspectives on salient issues. For example, Brazil stressed the compatibility of the TPNW and the NPT while Switzerland noted that relations between the treaties were not yet clear. Also observing were a handful of U.S. allies under the nuclear umbrella: Australia, Belgium, Germany, the Netherlands, and Norway and soon-to-be-NATO-allies Finland and Sweden. Norway, host of a previous humanitarian conference, even stated that attending the meeting of states-parties should not be viewed as a step toward ratification of the TPNW because the new treaty “would be incompatible with our NATO obligations.”12 Regardless, observers agreed with the goal of nuclear disarmament in their statements and commended the humanitarian initiative. Germany also welcomed the positive treaty obligation regarding victim assistance.13

It is also important to take stock of who was not in Vienna, namely the five NPT-recognized nuclear-weapon states, as well as India, Israel, North Korea, and Pakistan, who have not joined the treaty and did not participate as observers. Many of their allies did not send delegations either. This behavior is broadly consistent with statements by numerous countries that rely on nuclear weapons or extended deterrence indicating their refusal to join because the TPNW will undermine the NPT and not contribute to disarmament.14

Japan’s official absence was particularly notable. Despite vigorous efforts by activists to persuade the Japanese government to observe the Vienna meeting, it decided instead to focus on the NPT review conference in August. This decision effectively dashed near-term hopes that Prime Minister Fumio Kishida, who represents Hiroshima, would part ways with his predecessor Shinzō Abe’s opposition to the treaty. Nevertheless, several hibakusha, the survivors of the atomic bombings of Hiroshima and Nagasaki; the mayors of these two cities; and other activists were present. Both mayors spoke at the conference and received significant attention from scores of Japanese reporters who were present.

The meeting seemed as much about implementing the treaty as it was about rebutting oft-repeated criticism of the accord; the states-parties frequently engaged with the arguments of observers and nuclear-armed states. These debates primarily dealt with three issues: whether or how the TPNW and NPT complement or conflict with each other, the extent to which some states prioritize deterrence over disarmament, and condemnation of Russia’s nuclear threats during the war in Ukraine.

On the first point, almost every state-party reiterated in its national statement the complementarity of the TPNW with existing nonproliferation regime infrastructure. This includes the Comprehensive Test Ban Treaty, the nuclear-weapon-free zones, and especially the NPT. Such compatibility was a key message because the states-parties sought to counter the claims by nuclear-armed states that the new treaty would undermine the NPT, long the bedrock of arms control and disarmament efforts, and sow division among its members. Many delegates said the TPNW would encourage intensified efforts to meet unfulfilled NPT Article VI disarmament commitments.

On the second point, several delegations criticized states that rely on nuclear weapons for their national security. These statements drew attention to disagreements between those states that perceive nuclear weapons as a source of security and those that see them as creating insecurity. As the Jamaican delegate explained, “[F]ar from ensuring security, nuclear weapons threaten our survival.”15 The Irish delegate similarly stated, “It is our fundamental belief that nuclear weapons offer no security.”16 Another rhetorical theme was the use of the terms “realism” and “reality.” In the past, representatives of the nuclear-armed states have chastised the TPNW with phrases such as, “We have to be realistic.”17 Some treaty proponents used similar language to underline nuclear weapons effects and advocate for the global ban.

Finally, many European observer states wanted the states-parties to strongly condemn the Russian invasion of Ukraine, especially Putin’s nuclear threats. TPNW member state Ireland, among others, vociferously agreed, stating, “We cannot shy away from calling out those who threaten the use of nuclear weapons.” Controversially, the majority of states-parties did not even mention Russian aggression against Ukraine in their remarks. Fierce debate occurred behind the scenes about whether to shame Russia by name in the final document, but in the end, the members’ condemnation of “any and all nuclear threats” did not single out Russia. Many states-parties viewed Russian nuclear threats during the war in Ukraine as continuing a long history of misbehavior by the nuclear-armed states. To these delegations, Russian actions were further evidence of a lack of seriousness about disarmament by the nuclear powers rather than a standalone transgression requiring separate condemnation.

Competing Narratives and Nuclear Futures

The success of the first meeting of the TPNW states-parties is difficult to deny in terms of organization and policy. For one thing, the nuclear weapons have-nots succeeded in solidifying entry into force of an international treaty banning the world’s most powerful weapons, weapons that could imperil the future of humanity. Resulting policy developments include concrete efforts to expand the treaty to more states, increase public outreach, implement future nuclear dismantlement after nuclear-armed states join the treaty, and address collateral consequences of nuclear weapons. The strong enthusiasm of the delegations and nongovernmental observers was noticeably atypical for diplomatic proceedings, highlighting their passion for the new treaty and dedication to its objectives.

Euphoria among many TPNW proponents notwithstanding, many challenges lie ahead. Russia’s war in Ukraine has underscored and exacerbated long-standing nuclear divisions among states. Two possible lessons have emerged. On the one hand, Ukraine, a state lacking a nuclear-armed patron, was invaded after having given up its inherited Soviet nuclear arsenal, which has increased some states’ interest in nuclear deterrence and extended deterrence.18 There is now wider discussion of South Korea acquiring its own nuclear weapons.19 Meanwhile, Finland and Sweden have moved swiftly to join NATO and be covered by the U.S. nuclear umbrella.20 On the other hand, Putin’s nuclear threats appear to have further convinced many states and activists of the dangers of possessing these deadly weapons of mass destruction.

Finding common ground between these camps will not be easy, but there is power in narrative. Now that the TPNW is here to stay, the best advocacy strategy for proponents of the treaty appears to be pointing to the world’s nuclear realities. Putin is reminding the public continuously of disturbing nuclear facts that have received only limited popular attention since the Cold War ended. All major cities in nuclear-armed states, as well as NATO states in Europe, are mere minutes from destruction by nuclear-tipped ballistic missiles. This mutual nuclear targeting has been the case for many decades, but it has had low visibility in the public sphere.

The devastating consequences of any nuclear weapons use on societies, the environment, and politics would affect everyone on the planet. Governments are not the only actors that matter. ICAN Executive Director Beatrice Fihn has stressed that one objective of the ban movement must be to stigmatize the bomb from the bottom up in states relying on nuclear deterrence.21 Put simply, public opinion and public discourse are critical. Research has shown, for example, that a majority of U.S. and Japanese citizens support nuclear disarmament even though their leaders continue to push narratives of security through deterrence.22 Other polls indicate, however, that public opinion cannot be taken for granted. Many Americans can be persuaded to oppose the TPNW by U.S. government arguments against the treaty, 52 percent of Germans support maintaining once unpopular U.S. tactical nuclear weapons on their soil given Russia’s aggressive behavior, and a majority of Dutch support TPNW accession “only if nuclear-weapon states or other NATO allies also joined.”23

The next meetings of TPNW states-parties will take place at the UN in New York in 2023 and 2026, with Mexico and Kazakhstan, respectively, presiding over the discussions. Meanwhile, treaty advocates can feel proud of what they accomplished in Vienna, while remaining clear-eyed about the difficult work ahead. Implementing the nuclear ban treaty and attracting new members, particularly those that rely on nuclear weapons for security, undoubtedly will be difficult. Prospects for nuclear disarmament, whether through NPT Article VI or the TPNW, appear bleak in the short term as the world’s nuclear-armed states become increasingly divided.24 The disturbing stream of world events suggests, however, that the Vienna action plan’s emphasis on the humanitarian impacts of nuclear weapons use is the nuclear narrative that most closely mirrors reality.

 

ENDNOTES

1. Federation of American Scientists, “Status of World Nuclear Forces,” n.d., https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/ (accessed August 12, 2022).

2. Alexander K. Bollfrass and Stephen Herzog, “The War in Ukraine and Global Nuclear Order,” Survival, Vol. 64, No. 4 (August/September 2022): 7–32.

3. Rebecca Davis Gibbons, “The Humanitarian Turn in Nuclear Disarmament and the Treaty on the Prohibition of Nuclear Weapons,” The Nonproliferation Review, Vol. 25, Nos. 1-2 (February/March 2018): 11–36.

4. Treaty on the Prohibition of Nuclear Weapons, July 7, 2017, https://treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf.

5. First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Draft Vienna Declaration of the 1st Meeting of States Parties of the Treaty on the Prohibition of Nuclear Weapons: ‘Our Commitment to a World Free of Nuclear Weapons,’” TPNW/MSP/2022/CRP.8, June 23, 2022; First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Draft Vienna Action Plan,” TPNW/MSP/2022/CRP.7, June 22, 2022.

6. First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Implementing Article 12 of the Treaty on the Prohibition of Nuclear Weapons: Universalization; Working Paper Submitted by the Co-facilitators, Austria, Costa Rica and Indonesia,” TPNW/MSP/2022/WP.7, June 17, 2022.

7. First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Deadlines for the Removal From Operational Status and Destruction of Nuclear Weapons and Other Nuclear Explosive Devices, and Their Removal From National Territories (Article 4): Working Paper Submitted by the Facilitator, South Africa,” TPNW/MSP/2022/WP.9, June 22, 2022. For a discussion of why states may give up nuclear weapons, see Kjølv Egeland, “A Theory of Nuclear Disarmament: Cases, Analogies, and the Role of the Nonproliferation Regime,” Contemporary Security Policy, Vol. 43, No. 1 (January 2022): 106–133.

8. This time frame was influenced by research examining historical cases of weapons removal. See Moritz Kütt and Zia Mian, “Setting the Deadline for Nuclear Weapon Removal From Host States Under the Treaty on the Prohibition of Nuclear Weapons,” Journal for Peace and Nuclear Disarmament, Vol. 5, No. 1 (June 2022): 148–161.

9. For more on these legacies, see Togzhan Kassenova, Atomic Steppe: How Kazakhstan Gave Up the Bomb (Stanford: Stanford University Press, 2022); Becky Alexis-Martin et al., “Addressing the Humanitarian and Environmental Consequences of Atmospheric Nuclear Weapon Tests,” Global Policy, Vol. 12, No. 1 (February 2021): 106–121.

10. For further background, see Bonnie Docherty, “From Obligation to Action: Advancing Victim Assistance and Environmental Remediation at the First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons,” Journal for Peace and Nuclear Disarmament, Vol. 3, No. 2 (November 2020): 253–264; Nidhi Singh, “Victim Assistance Under the Treaty on the Prohibition of Nuclear Weapons: An Analysis,” Journal for Peace and Nuclear Disarmament, Vol. 3, No. 2 (November 2020): 265–282.

11. First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons, “Complementarity With the Existing Disarmament and Non-proliferation Regime: Working Paper Submitted by the Co-facilitators, Ireland and Thailand,” TPNW/MSP/2022/WP.3, June 8, 2022.

12. Jørn Osmundsen, Statement to the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons, June 21, 2022, https://documents.unoda.org/wp-content/uploads/2022/06/Norway.pdf.

13. Rüdiger Bohn, Statement to the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons, Vienna, June 21–23, 2022, https://documents.unoda.org/wp-content/uploads/2022/06/Germany.pdf.

14. See, for example, Paul Schulte, “The UK, France and the Nuclear Ban Treaty,” in Breakthrough or Breakpoint? Global Perspectives on the Nuclear Ban Treaty, ed. Shatabhisha Shetty and Denitsa Raynova, December 2017, p. 21, https://www.europeanleadershipnetwork.org/wp-content/uploads/2017/12/ELN-Global-Perspectives-on-the-Nuclear-Ban-Treaty-December-2017-1.pdf.

15. Government of Jamaica, Statement to the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons, Vienna, June 21-23, 2022, https://documents.unoda.org/wp-content/uploads/2022/06/Jamaica.pdf.

16. Government of Ireland, Statement to the first meeting of states-parties to the Treaty on the Prohibition of Nuclear Weapons, n.d., https://documents.unoda.org/wp-content/uploads/2022/06/Ireland.pdf.

17. Somini Sengupta and Rick Gladstone, “United States and Allies Protest U.N. Talks to Ban Nuclear Weapons,” The New York Times, March 27, 2017.

18. Lauren Sukin and Alexander Lanoszka, “Poll: Russia’s Nuclear Saber-rattling Is Rattling Neighbors’ Nerves,” Bulletin of the Atomic Scientists, April 15, 2022, https://thebulletin.org/2022/04/poll-russias-nuclear-saber-rattling-israttling-neighbors-nerves/. For a discussion of Ukraine’s disarmament, see Mariana Budjeryn, Inheriting the Bomb: The Collapse of the USSR and the Nuclear Disarmament of Ukraine (Baltimore: Johns Hopkins University Press, 2022).

19. Choe Sang-hun, “Ukraine Conflict Revives Nuclear Arms Question in a Wary South Korea,” The New York Times, April 7, 2022, p. A10.

20. William Alberque and Benjamin Schreer, “Finland, Sweden and NATO Membership,” Survival, Vol. 64, No. 3 (June/July 2022): 67–72.

21. Motoko Mekata, “How Transnational Civil Society Realized the Ban Treaty: An Interview With Beatrice Fihn,” Journal for Peace and Nuclear Disarmament, Vol. 1, No. 1 (2018): 79–92.

22. Ondrej Rosendorf, Michal Smetana, and Marek Vranka, “Disarming Arguments: Public Opinion and Nuclear Abolition,” Survival, Vol. 63, No. 6 (December 2021/January 2022): 183-200; Jonathan Baron, Rebecca Davis Gibbons, and Stephen Herzog, “Japanese Public Opinion, Political Persuasion, and the Treaty on the Prohibition of Nuclear Weapons,” Journal for Peace and Nuclear Disarmament, Vol. 3, No. 2 (November 2020): 299–309.

23. Stephen Herzog, Jonathon Baron, and Rebecca Davis Gibbons, “Antinormative Messaging, Group Cues, and the Nuclear Ban Treaty,” Journal of Politics, Vol. 84, No. 1 (January 2022): 591–596; Robert Bongen, Hans-Jakob Rausch, and Jonas Schreijäg, “Umfrage: Erstmals Mehrheit für Atomwaffen in Deutschland” [Poll: Majority in favor of nuclear weapons in Germany for the first time], Tagesschau, June 2, 2022, https://www.tagesschau.de/investigativ/panorama/umfrage-atomwaffen-deutschland-101.html; Michal Onderco et al., “When Do the Dutch Want to Join the Nuclear Ban Treaty? Findings of a Public Opinion Survey in the Netherlands,” The Nonproliferation Review, October 27, 2021, https://doi.org/10.1080/10736700.2021.1978156.

24. Rebecca Davis Gibbons and Stephen Herzog, “Durable Institution Under Fire? The NPT Confronts Emerging Multipolarity,” Contemporary Security Policy, Vol. 43, No. 1 (January 2022): 50–79.

 


Rebecca Davis Gibbons is an assistant professor of political science at the University of Southern Maine. Stephen Herzog is a senior researcher in nuclear arms control at the Center for Security Studies at ETH Zurich. They are co-chairs of the Beyond Nuclear Deterrence Working Group at the Harvard Kennedy School’s Project on Managing the Atom.

After the successful launch of the nuclear ban treaty, the hard work of convincing more states to join lies ahead.

Breaking the Impasse Over Security in Space


September 2022
By Victoria Samson

As the international use of space has become more complicated since the end of the Cold War, multilateral discussions about ensuring the security of this shared domain have stalled because of circular arguments. Yet, the need to address this challenge is acute because space security continues to grow as a factor in overall global stability and, in fact, has become more relevant, given that many more countries are interested in the benefits that come from space assets and in counterspace capabilities.

Russia in August unveiled a model of its planned new orbital space station at a military-industrial exhibition near Moscow. As tensions with the West rise, Russia has indicated that it will quit the International Space Station after 2024 to pursue its own project. (Photo by Contributor/Getty Images)A few statistics underscore this reality. As of August 2022, there are more than 6,400 active satellites in orbit, affiliated with more than 80 nations.1 The U.S. military is tracking 47,000 pieces of uncontrollable space debris that can disable or destroy satellites.2 A stable, predictable space environment serves all who get benefits from this domain, and because space is literally universal, it requires a shared global approach to achieve that outcome.

Although this lack of progress in space security discussions in multilateral forums has become worrisome, there is some reason for optimism. In an effort to break the impasse, international diplomats and experts over the past several years have begun shifting from a traditional arms control approach that attempted to limit control of technologies through treaties or other legally binding approaches to a focus on behavioral, non-legally binding approaches to space security. Toward this end, an open-ended working group established by the United Nations is striving to identify norms of behavior and responsible actions in space, a process that could create room for new governance mechanisms to make space more stable and predictable. The wildcard is whether the working group participants, next scheduled to meet in Geneva on September 12–16, are prepared to approach the conversation in good faith and prioritize the group’s success over winning short-term political points against rivals.

Along with using space for national security missions, such as intelligence, surveillance, reconnaissance, missile tracking, military communications, and command and control, more countries are relying on it for economic development. Increasingly, they also are investigating ways in which to interfere with other countries’ access to or use of space assets. The Secure World Foundation launched a global counterspace threat assessment in 2018 by examining what was known publicly about the counterspace research, development, policies, and budgets of China, India, Iran, North Korea, Russia, and the United States.3 In 2020, France and Japan were added; the version released this April also included Australia, South Korea, and the United Kingdom, for a total of 11 countries.4

Although many countries are pursuing significant research and development programs involving a broad range of destructive and nondestructive counterspace capabilities, only nondestructive capabilities are actively being used in current military operations. There has been a recent uptick, however, in destructive anti-satellite (ASAT) weapons testing, which is concerning because such tests can result in long-lived debris that can harm other satellites in orbit. They also can establish the precedent that ASAT weapons tests are acceptable and thus encourage more countries to conduct them. That in turn runs the risk of inadvertent escalation or even possible deliberate use of ASAT weapons during a conflict if this proliferation becomes more prevalent.

During the Cold War, the only two countries to test ASAT weapons systems were the Soviet Union and the United States. There was a decade-long pause in these tests at the end of the Cold War, but they eventually resumed with the involvement of two more countries: China in 2005 and India in 2019. Over the past 17 years, there have been 24 tests by the four countries, out of a total of 80 tests conducted since the first one by the United States in 1959 (fig. 1).5

Source: Secure World Foundation, https://swfound.org/counterspace, May 5.The security and stability of space has been a concern since the beginning of the Space Age. It is more acute now, however, because more than 80 countries have satellites in orbit and there is a rising dependence on space capabilities for such critical needs as economic development, environmental monitoring, and disaster management. Although space security had been perceived as important only to the geopolitical superpowers, nearly every person on the planet now uses space data in some way and thus benefits from a predictable space environment.

Given the security concerns related to space capabilities and the fact that space is a shared domain where the activities of one actor can affect the ability of all to utilize it, the United Nations is the natural organization to convene space security negotiations. Nevertheless, it has not generated any concrete results on this topic in years. One reason is a fundamental disagreement among geopolitical superpowers about the nature of the threat and managing it. China, Russia, and their allies have long focused on explicitly defined weapons systems placed in orbit that could threaten ground targets. They are concerned that a country would field space-based missile defense interceptors, with the assumption being that the United States would be the one to do this, even though it has no plans to deploy such interceptors or invest significantly in that capability. Such a threat definition reflects a traditional arms control approach focusing on a specific technology and designated weapons system that China and Russia consider destabilizing to space security.

China and Russia have opted to defend against this threat by promoting a treaty-based approach. In 2008, they released their draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects, revamping it in 2014. It has not gotten much traction, given its lack of verification, its failure to address ground-based ASAT weapons systems, and the dual-use nature of space technology. The U.S. refusal, until recently, to offer an alternative also has stymied progress in multilateral discussions on space security.

The United States and its allies have considered the biggest threats to space security and stability to be behavior and actions in orbit. They argue that much of the same technology could have benign usage or bad intent, depending on the actions undertaken by the owner of that technology. The dual nature of much of the technology used for satellite capabilities and launching means it can have civilian or military applications, depending on the mission. That makes it difficult to use a traditional arms control approach in which the technology itself is limited from proliferating further. Instead, it is what is done with that technology that can be perceived as threatening. They assert that, in order to ensure a stable, predictable space environment, the best approach is to develop norms of behavior or identify responsible actions in orbit, because that would not be dependent on specific technology to be effective. There has not been general interest in a legally binding approach to space security, given that the last effective space treaties were negotiated in the mid-1970s.

In December 2020, the UK led a coalition of countries as sponsors of UN General Assembly Resolution 75/36.6 The resolution, which passed resoundingly, called for national submissions to UN Secretary-General António Guterres by May 2021 that would clarify how countries see threats to space security, identify responsible behavior in space, and suggest possible paths forward. The goal was to find commonalities that could break the impasse that for decades essentially had stopped progress in space security discussions in the Conference of Disarmament. Around 30 countries submitted responses, reflecting some convergence around the idea that the deliberate creation of space debris and the uncoordinated close approach to another country’s satellite are irresponsible.7

South Korea on June 21 successfully launched its homegrown space rocket Nuri  (KSLV-II) in the second attempt to put satellites into orbit, a milestone in the country's space program. In this handout image from the Korea Aerospace Research Institute, the space rocket Nuri (KSLV-II) takes off from its launch pad at the Naro Space Center in Goheung-gun, South Korea. (Photo by Korea Aerospace Research Institute via Getty Images)On the other hand, many countries identified acting with due regard and avoiding harmful interference, principles represented in Article IX of the 1967 Outer Space Treaty, as responsible behavior. Some countries still pushed for a legally binding response to concerns about space security, but there seemed to be broader support for non-legally binding solutions. Based on the national submissions, Guterres generated a report summarizing the major ideas put forward and recommending an inclusive process to move the discussions forward at the UN General Assembly meeting in fall 2021.8

In December 2021, UK officials, again with a strong coalition of co-sponsors, secured adoption of Resolution 76/231, which called for establishing an open-ended working group that would work on “reducing space threats through norms, rules and principles of responsible behaviour.”9 It is similar to another type of UN entity, the group of governmental experts, in that both are given a very specific mandate and have the goal of producing a final report that is based on consensus. The crucial difference is participation: an open-ended working group is open to all UN member states and sometimes civil society organizations or other relevant actors, with the mission of making the process as inclusive as possible. If the goal is to reach agreement on responsible behaviors in space that reflect the needs of the global community, not just one category of space actors, and to ensure that the approved norms do not unduly burden new actors in space, it is important to represent as many perspectives as possible in the discussions.

This commitment to inclusivity was a lesson learned from the failure of the European Union’s draft International Code of Conduct, which was perceived by non-Western actors as a preexisting document in which they had no input. Similarly, a group of governmental experts met in 2018–2019 to discuss elements of a potential legally binding instrument for the prevention of an arms race in outer space. Due to UN criteria, however, it limited participation to 25 member states. Even so, it failed to reach consensus on its report.

The open-ended working group on space has been tasked to meet twice each in 2022 and 2023 and given the mandate to examine the existing legal and normative framework regarding space threats arising from behavior, discuss threats to space systems and irresponsible actions, and recommend norms, rules, and principles of responsible behavior in space. The report is due to be submitted to the General Assembly in the fall of 2023.10 The resulting norms could then be used as launchpads for UN resolutions. Further down the line, they could even be the basis of legally binding agreements.

The first working group meeting was scheduled for mid-February 2022, but at the planning session the preceding week, it became apparent that there was resistance to holding the group meeting as planned. Countries that voted no on the resolution creating the working group suspected that the whole process was meant to end-run the Chinese-Russian treaty proposal. They argued that the roughly six weeks since the passing of Resolution 76/231 had not given the international community sufficient time to prepare. Recognizing the futility of a diplomatic negotiation in such a situation, the working group chair, Hellmut Lagos Koller of Chile, postponed the first meeting until May amid hopes that that would give interested parties sufficient preparation time.

In the interim, the United States announced that it was committing not to conduct destructive direct-ascent ASAT missile tests.11 This decision reflected how the United States and like-minded nations are approaching space security issues, with a focus on behavior, not capabilities, and on achieving a non-legally binding agreement instead of a formal treaty. Even so, U.S. officials have not ruled out the possibility that this unilateral commitment could eventually evolve into a treaty.

The impetus for the commitment not to conduct ASAT weapons tests was concern regarding the long-lived debris that the tests created. It was foreshadowed in U.S. Secretary of Defense Lloyd Austin’s July 2021 memo that spelled out five tenets of responsible behavior in U.S. Department of Defense space operations, including limiting the generation of long-lived debris.12

The debris issue also was brought up in December 2021 at the first meeting of the National Space Council, where the Biden administration released its space priorities framework. In remarks at that event, Vice President Kamala Harris criticized the ASAT weapons test conducted by Russia one month earlier that created more than 1,500 pieces of trackable debris, and Deputy Secretary of Defense Kathleen Hicks stated that the Defense Department “would like to see all nations agree to refrain from antisatellite weapons testing that creates debris.”13 Even with this intellectual underpinning, the decision to halt ASAT weapons testing was a big change in that the United States was voluntarily and proactively restricting the possibility of future destabilizing actions in orbit. For many years, the national security establishment had looked askance at anything less than complete freedom of action for the United States in space.

The U.S. testing announcement led the way to the first meeting of the UN space working group in Geneva three weeks later. There was some trepidation beforehand that those who opposed the group’s creation might cause procedural interruptions or otherwise limit discussion, but the meeting went surprisingly smoothly. The one exception was a brief walkout by Western countries when a Russian diplomat used inflammatory language about the Ukrainian government. Mostly, the participating countries seemed invested in having a general exchange of views and discussing speaker presentations on the international legal and normative framework concerning threats arising from state actions.

Underlining the inclusivity for which organizers were hoping, a wide variety of state actors participated in the discussions while civil society representatives listened from the sidelines and made their own statements when time permitted.

The Canadian delegation kicked off the first day of the meeting with the surprising announcement that Canada too would make a commitment not to conduct destructive ASAT missile tests.14 This commitment was endorsed by more than a dozen countries, and Brazil even called for a complete moratorium on all ASAT weapons tests. No other countries officially joined the United States and Canada in this pledge at that time, although New Zealand did in June 2022.15 During the working group meeting, the United States made clear that it hoped moratoriums would become a broadly endorsed norm and be incorporated into whatever principles of responsible behavior might make it into the final working group report.

The focus will shift to threats to space security when the working group opens its next meeting on September 12 in Geneva. It is possible that this week-long session could be more turbulent than the last one given the divisions among the geopolitical superpowers over what threatens space security and stability, particularly concerns that a process centered on non-legally binding norms of behavior will supplant a legally binding approach.

None of this means that the working group is doomed to failure. Simply holding these discussions is broadening awareness globally about the complicated structure of space security and the ways in which the multilateral process can shore it up. Many states without experience in these topics are developing their knowledge and capacity to participate in these discussions and are doing so in an increasingly sophisticated manner that is moving the debate forward. For example, the Philippines introduced a paper about the principle of due regard and its role in responsible space behavior at the May working group meeting.16

The content of the discussions is illuminating too, reflecting a spectrum of responses in terms of what activities countries perceive to be destabilizing in space, what they deem responsible behavior to be, and how those involved in space should be held accountable for their actions. Whether the international community comes to agreement on any of this, it is helpful from a transparency perspective to have these beliefs spelled out and made public.

Although it is not guaranteed that there will be universal agreement on the norms and principles to be included in the final working group report, it is likely that there will be broad concurrence on at least some norms of responsible space behavior. There is nothing preventing countries from taking what they have found useful in these group discussions and incorporating them unilaterally in their space activities, independent of the UN process. In addition, these norms could become the foundation of future UN resolutions and, if widely disseminated, could even lead to legally binding agreements. For example, more states could formalize commitments not to conduct destructive ASAT missile tests. Although some question the benefit of such a pledge, there is power behind it. Even countries that cannot conduct missile tests or never had any intention of doing so can demonstrate that they find such behavior irresponsible due to the unpredictable nature and potential damage of the debris generated. That is how the norm can be formalized and gain acceptance until one day it becomes customary international law. Of course, countries that have tested ASAT weapons systems can reinforce future stability and security by making this pledge as well.

There are other actions states can take and include in the working group report to advance transparency and accountability for activities in orbit while not being too restrictive or burdensome. These include underlining their commitments to the existing legal framework for space activities, such as signing and ratifying the Outer Space Treaty, the Liability Convention, and the Registration Convention; registering space objects, including military ones, with the UN in a timely manner; and providing information about activities in space, including, when possible, military satellite behavior, such as satellite launch notifications, planned satellite maneuvers, and potential close approaches to other satellites.

They could also commit to creating and publicizing protocols guiding uncoordinated close approaches to other countries’ satellites; publishing information about national budgets, policies, and programs related to space; agreeing not to interfere with national technical means of verification; and engaging in best practices to mitigate the creation of space debris.

In short, this working group has the potential to move discussions off the hamster wheel of the treaty/no treaty debate on which the international community has been stuck for years. The group will not be able to resolve all security concerns about space, because no single solution or approach can do that; but it could make progress on some of the most pressing challenges, helping make space safer, more stable, and more predictable for all.

 

ENDNOTES

1. CelesTrak, “SATCAT Boxscore,” August 10, 2022, https://celestrak.org/satcat/boxscore.php.

2. Sandra Erwin, “Tracking Debris and Space Traffic a Growing Challenge for U.S. Military,” SpaceNews, August 9, 2022, https://spacenews.com/tracking-debris-and-space-traffic-a-growing-challenge-for-u-s-military/.

3. Brian Weeden and Victoria Samson, eds., “Global Counterspace Capabilities: An Open Source Assessment,” Secure World Foundation, April 2022, https://swfound.org/media/207350/swf_global_counterspace_capabilities_2022_rev2.pdf.

4. Ibid.

5. “Anti-Satellite Weapons,” Secure World Foundation, n.d., https://swfound.org/media/207392/swf-asat-testing-infographic-may2022.pdf.

6. UN General Assembly, “Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviours,” A/RES/75/36, December 16, 2020.

7. UN Office for Disarmament Affairs (UNODA), “Report of the Secretary-General on Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviors (2021),” n.d., https://www.un.org/disarmament/topics/outerspace-sg-report-outer-space-2021/ (accessed August 12, 2022).

8. UN General Assembly, “Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviors: Report of the Secretary-General,” A/76/77, July 13, 2021.

9. UN General Assembly, “Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviors,” A/RES/76/231, December 30, 2021.

10. UNODA, “Open-Ended Working Group on Reducing Space Threats: Overview,” n.d., https://meetings.unoda.org/meeting/oewg-space-2022/ (accessed August 12, 2022).

11. The White House, “Fact Sheet: Vice President Harris Advances National Security Norms in Space,” April 18, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/18/fact-sheet-vice-president-harris-advances-national-security-norms-in-space/.

12. Lloyd J. Austin to secretaries of the military departments et al., “Tenets of Responsible Behavior in Space,” memorandum, July 7, 2021, https://media.defense.gov/2021/Jul/23/2002809598/-1/-1/0/TENETS-OF-RESPONSIBLE-BEHAVIOR-IN-SPACE.PDF.

13. Marcia Smith, “Space Council Condemns Russian ASAT Test, DOD Calls for End to Debris-Creating Tests,” SpacePolicyOnline.com, December 1, 2021, https://spacepolicyonline.com/news/russian-asat-test-draws-more-condemnation-from-national-space-council-dod-wants-to-end-debris-creating-tests/.

14. Jeff Foust, “Canada Joins U.S. in ASAT Testing Ban,” SpaceNews, May 9, 2022, https://spacenews.com/canada-joins-u-s-in-asat-testing-ban/.

15. Mike Houlahan, “Mahuta’s Satellite Test Pledge Launches Policy School,” Otago Daily Times, July 2, 2022, https://www.odt.co.nz/news/dunedin/campus/mahuta%E2%80%99s-satellite-test-pledge-launches-policy-school.

16. UN General Assembly, “The Duty of ‘Due Regard’ as a Foundational Principle of Responsible Behavior in Space: Submitted by the Republic of the Philippines,” A/AC.294/2022/WP._, May 6, 2022 (advanced and unedited version).

 


Victoria Samson is the Washington office director of the Secure World Foundation, a nongovernmental organization that promotes cooperative solutions for space sustainability.

A new UN working group could break a long-standing impasse on advancing space security.

Negative Security Assurances After Russia’s Invasion of Ukraine


July/August 2022
By Francesca Giovannini

On February 24, the international community took a catastrophic blow. Already battered by two years of the COVID-19 pandemic and deteriorating interstate relations, it stood in horror as Russian forces unleashed an unprovoked war on a neighboring country. Russia’s decision to invade Ukraine and reject Ukraine’s very existence as a separate state is ominous and highly momentous for the future of the world order.

A worker on a Ukrainian military base in 2006 cuts the nose off the last of Ukraine's Tupolev-22M3 bombers, also known as the "Backfire", a Soviet-made nuclear-capable strategic aircraft. A total of 60 aircraft were destroyed as part of an agreement under which Ukraine gave up nuclear weapons on its territory to Russia in return for security assurances that have now been violated. (Photo by Sergei Supinsky/AFP via Getty Images)The immediate consequences have been easily observable. More than seven million refugees have now crossed borders into other neighboring states, and many more remain internally displaced without supplies and assistance. Almost all major Ukrainian cities have been destroyed, and now a global food shortage is looming if agricultural exports from Ukraine and Russia are not promptly resumed. The long-term consequences might be, if possible, even more catastrophic.

There are legitimate growing concerns that Russia’s invasion of Ukraine might herald a new era of territorial conquest. Whether the norm of territorial sovereignty is upended or endures largely depends on whether the international community as a whole, not only the Western bloc, decides to rebuff and isolate Russia. So far, the reaction against Russian President Vladimir Putin’s power grab has been lukewarm at best in many world capitals.1

The significance of the Russian invasion is even more acute if analyzed through the lens of nuclear weapons. More than any other non-nuclear-weapon state except Belarus and Kazakhstan, Ukraine, received through the 1994 Budapest Memorandum, an unprecedented set of tailored negative security assurances from Russia, the United Kingdom, and the United States, the three depositary states of the nuclear Nonproliferation Treaty (NPT). These assurances were extended at the time of Ukraine’s accession to the NPT as a potent political reward in support of the country’s decision to become a non-nuclear-weapon state by eliminating all nuclear weapons from its territory.

Thirty years later, the country has been set ablaze by the Russian army. Europe and the world are now held hostage by a Russian president willing to resort to the threat of nuclear weapons use. As the war in Ukraine rages on, it is fair to ask, Do negative security assurances mean anything at all in the age of irresponsible nuclear-armed states?

A Patchwork Regime

For years, as they sought to establish a collective norm that would allow a more predictable coexistence with nuclear-armed states,2 non-nuclear-weapon states have demanded negative security assurances as binding commitments from nuclear-weapon states not to threaten and not to use nuclear weapons against their territory.

As George Bunn once remarked, “Since the first attempts to negotiate the [NPT], security assurances to [non-nuclear-weapon] states have been considered an important component of a credible worldwide nuclear nonproliferation regime. They have been viewed by [non-nuclear-weapon states] as one of their major requirements for achieving an adequate balance between their obligations and those of nuclear-weapon states.”3 Achieving a universal regime of negative security assurances proved difficult from the start. The first UN Security Council resolution on security assurances passed with the support of the Soviet Union, the UK, and the United States and simply committed the signatory countries to provide assistance to any non-nuclear-weapon state coming under a nuclear attack.4

Over time, a patchy regime of negative security assurances has emerged although it remains incoherent, fragmented, and as the Ukrainian case demonstrated, profoundly inadequate to provide the kind of reassurances that non-nuclear-weapon states might require in a highly unpredictable global nuclear order.5 Today, there are four main mechanisms by which assurances are granted to a non-nuclear-weapon state: The UN Charter, unilateral pledges by nuclear-armed states, no-first-use policies, and regional nuclear-weapon-free-zone treaties.

Article 2(4) of the UN Charter prohibits UN member states from using force against the territorial integrity or political independence of another state or in any other manner inconsistent with the purposes of the United Nations. The charter should serve theoretically as the most authoritative guarantee. Yet, the irony of entrusting the five acknowledged nuclear-weapon states, which are also permanent members of the UN Security Council, to act as the main global security guarantors can be hardly missed. Although the charter in principle gives all member states a guarantee against threats to and attacks on their territory and sovereignty, the reality is that many such threats and attacks have occurred since the UN was founded. If states are worried about being threatened by states armed with nuclear weapons, the fact that each of the five acknowledged nuclear-armed states has a veto in the Security Council hardly offers much confidence that the council will be able to address a threat emanating from one of them.

Nuclear-armed states have also provided unilateral pledges that are important but also qualified upon specific conditions.

The 2018 U.S. Nuclear Posture Review provides negative security assurances by stating that the United States “will not use or threaten to use nuclear weapons against non-nuclear-weapon states that are party to the NPT and in compliance with their nuclear nonproliferation obligations.” The document added the qualification that the United States reserves the right to amend its negative assurance if warranted by “the evolution and proliferation of non-nuclear strategic attack technologies.”6

Russia has made notable changes to its nuclear doctrine. For example, in 1993, to mitigate its own conventional military weaknesses, Russia adopted a defense posture heavily reliant on nuclear weapons and rejected the Soviet-era no-first-use pledge. Ever since, the Russians have reserved the right to use nuclear weapons in response to an attack involving any weapon of mass destruction or in response to conventional attacks “when the very existence of the state is under threat.”

France and the UK have opted for strategic ambiguity and have left open the possibility of using nuclear weapons against non-nuclear-weapon states in specific cases, including in response to weapons of mass destruction (WMD) threats or to an attack from a state acting “in association or alliance with a nuclear-weapon state.”7

Unlike other nuclear-armed states, China and India have adopted no-first-use pledges but it is unclear how long they will maintain them. As Steve Miller has argued, if a no-first-use policy “is to be more than a declaratory policy, then it must be meaningfully reflected in the war planning and force postures of the nuclear powers. Because the possibility of first-use inheres in the possession of a nuclear arsenal, it is not easy to create a posture that effectively displays genuine fidelity to the [no-first-use] pledge.”8 Miller has suggested several steps to make a no-first-use commitment more than just an empty statement, yet none of these steps is necessarily irreversible and permanent in nature. No-first-use policies are malleable depending on the needs of nuclear-armed states and the context in which they operate.

Regional nuclear-weapon-free zones offer more protection in that they contain a nonuse additional protocol that binds nuclear-weapon states not to use or threaten to use nuclear weapons against state-parties to a zone treaty. As Leonard Spector and Aubrie Ohlde suggest, “Non-use guarantees provided in the latter context offer NPT non-nuclear-weapon states one crucial advantage in comparison to more generalized, unilateral negative security assurances: There is no question that, if a [zone] treaty is in force, duly ratified protocols to that treaty are legally binding vis-à-vis the zonal parties.”9

The record of the regional nuclear-weapon-free-zone treaties is promising but mixed. The Treaty of Tlatelolco, affecting Latin America and the Caribbean, is the only one that has been ratified by all nuclear-weapon states. The impediments facing the others can be seen in the case of the United States. Although the United States signed additional protocols for the remaining zone treaties and submitted them to the U.S. Senate for ratification, the protocols are unlikely to be concluded soon given increasing U.S. political polarization.10

Even when a nuclear-weapon state ratifies a zone treaty, the commitment usually comes with qualifications that shrink the legal protection offered by the treaty.11 For example, in ratifying the additional protocols of the Africa-focused Pelindaba Treaty, France specified that nothing in “the protocols or the articles of the treaty shall impair the full exercise of the right of self-defense” as provided in article 51 of the UN Charter.12

Similarly, the UK imposed conditionality on its ratification of the Central Asian nuclear-weapon-free zone, arguing that it “reserve[s] the right to exercise the right to withdraw from the Protocol under Article 6, or where [it] considers that the threat, development and proliferation of other weapons of mass destruction, for example chemical and biological, make it necessary.

The case of the Southeast Asia Nuclear-Weapon-Free-Zone Treaty also reveals the insurmountable obstructionism of nuclear-weapon states when regional power projection is at stake. Since 1995, the Association of Southeast Asian Nations has been negotiating with the nuclear-weapon states to achieve ratification of the treaty protocols, but none of the five has done so. They claim that the treaty extends protection over continental shelves and exclusive economic zones, thereby potentially limiting port visits or landing rights for foreign vessels and aircraft.13 In a time of great-power competition and the U.S. pivot to Asia, it is plausible to argue that the fate of this treaty will remain in limbo for years to come.

All existing mechanisms are important but deemed insufficient even by many non-nuclear-weapon states. Several official statements over the years pointed out the need for a more comprehensive, legally binding multilateral treaty. During the opening of the 2010 NPT Review Conference, the official statement of the Non-Aligned Movement (NAM) reiterated “the importance of concluding a universal, unconditional, and legally binding instrument on negative security assurances to the non-nuclear-weapon states as a matter of priority, pending the total elimination of nuclear weapons.”14

In 2015 the NAM argued even more forcefully that “pending the total elimination of nuclear weapons, it is the legitimate right of all non-nuclear-weapon states-parties to receive effective, universal, unconditional, non-discriminatory, and irrevocable legally binding security assurances against the use or threat of use of nuclear weapons under all circumstances.”15

Finally, in a working paper tabled for the upcoming 10th NPT Review Conference in August, Algeria called for states-parties to “reaffirm the right of non-nuclear-weapon states to credible security assurances to ensure their security and sovereignty against the use, or threat of use, of nuclear weapons while awaiting nuclear disarmament.”16

The War’s Impact on Ukraine

Russia’s violation of Ukrainian sovereignty marks an inflection moment in the delicate relationship between nuclear-armed states and the rest of the international community and “sets a dangerous precedent by abrogating a longstanding convention and undermining the wider framework of security assurances and guarantees that nuclear-weapons states offer to non-nuclear-weapon states.”17

Although given security guarantees in 1994 when it gave up Soviet-era nuclear weapons on its territory, Ukraine today is in the fifth month of an unprovoked war by Russia that has killed thousands of civilians and destroyed countless cities. In photo, rescuers evacuate the body of a person from a building in Sergiyvka, near Odessa, that was hit by a missile strike on July 1, according to the Ukrainian emergency services. (Photo by Oleksandr Gimanov/AFP via Getty Images)As the war in Ukraine rages on, experts are debating how it will affect the security calculations of non-nuclear-weapon states. Some experts have claimed that the Russian invasion, if successful in its scope, could set a dangerous precedent so as to embolden other nuclear-armed states to launch military campaigns to conquer neighboring countries. The case of China over Taiwan is front and center in these specific discussions.

In a scenario where nuclear-armed states become increasingly predatory, non-nuclear-weapon states could seek protection by joining existing nuclear alliances. The hasty accession of Finland and Sweden to NATO seems to validate this argument. Yet, it is unclear how much political appetite exists in the United States to further expand nuclear guarantees to countries not already under the protection of U.S. nuclear extended deterrence.

Alternatively, the ruthless way in which Russia has chosen to disregard its commitments to Ukraine’s territorial sovereignty and the glibness with which its leaders threaten the use of nuclear weapons today may prompt countries with advanced nuclear know-how to pursue or fast-track the development of their individual nuclear capabilities. The path to the bomb is not easy or cost free, however, and is not a choice that any country can pursue lightheartedly.

A more likely, less discussed, but equally consequential scenario is that the war in Ukraine will deepen alienation, grievances, and mistrust among non-nuclear-weapon states. Such estrangement could lead to even more fierce political obstructionism against any new nuclear policy and a dangerous institutional paralysis across multiple institutions. This scenario is not one the international community can afford to face.

Rethinking Negative Security Assurances

Nuclear weapons-possessing states, especially the five acknowledged by the NPT, have often defined themselves as responsible guardians of the nuclear order. Yet, from the perspective of many non-nuclear-weapon states, history is riddled with examples of lawless behavior by nuclear-weapon states that, hiding behind the shield of their nuclear arsenals, have embarked on senseless military adventures without ever being held accountable. If anything, the war in Ukraine has validated the security concerns harbored by many non-nuclear-weapon states and further exacerbated their mistrust of the current nuclear order.

In such a precarious moment, there needs to be an urgent rethinking of the relationship between the nuclear-armed states and the rest of the international community by launching and sustaining a global dialogue with the goal of developing a new regime of universal, unconditional negative security assurances as a first concrete step. This regime will build on the existing mechanisms while expanding the responsibilities of nuclear-armed states and deepening their accountability.

Specifically, the new regime should start with a UN Security Council resolution declaring that honoring unilateral pledges of negative security assurances is a precondition to maintaining veto power in the council. The UN General Assembly should then agree to convene a special session every year in which all nuclear-armed states recommit to universal, unconditional negative security assurances to be delivered during the annual meeting of its First Committee. Finally, the UN Economic and Social Council should adopt a resolution stating that all regional trade agreements concluded in regions with nuclear-weapon-free zones should include a clause obliging all nuclear-armed states to honor the commitment to nonuse and nonthreat of nuclear weapons. Even the simple threat of nuclear weapons use could be sufficient to invalidate a regional trade agreement if the regional contracting parties choose to do so.

To enhance the existing regime of negative security assurances, it is critical for the UN to take a leading role. For too long, discussions about negative security assurances have been relegated almost exclusively to the domain of the NPT review conferences. Yet, as the Ukraine war demonstrates, in an age of predatory nuclear-weapon states, protecting non-nuclear-weapon states from the threat of nuclear weapons has to be a priority for the international community. In addition and perhaps most promising, the Ukraine war is bringing about significant changes in the power distribution within the UN itself for the benefit of non-nuclear-weapon states.

In the aftermath of the UN Security Council’s inaction over the Ukraine invasion, the General Assembly on April 26 adopted a resolution aimed at holding the council accountable for its use of vetoes. The resolution grants power to the General Assembly president to convene a formal meeting of all 193 UN members to demand an explanation when a veto is exercised by one or more Security Council members and the results undermine the UN’s role in maintaining global peace and security. By itself, the resolution may not be radical, but it comes amid an expanding movement demanding significant reforms, including more democratization in UN operations. For the first time, UN members are insisting on more accountability from the nuclear-weapon states that hold veto power in the council. A coalition of countries could take the discussion further and work with the General Assembly on an initiative that links the veto power of the five permanent Security Council members to the provision of negative security assurances to the international community.

Trainees prepare for combat formation training in June in New Taipei City, Taiwan. More Taiwanese citizens are seeking gun training amid concerns of possible military action against the self-governing island by China, which experts say could be emboldened by Russian aggression against Ukraine. (Photo by Annabelle Chih/Getty Images)It is equally essential for all nuclear-armed states, not just the acknowledged five, to reaffirm their commitment annually to honor universal, unconditional negative security assurances to all non-nuclear-weapon states. Demanding accountability from all nuclear-armed states is critical if non-nuclear-weapon states want to establish and maintain a universal regime of security assurances. In this regard, it would be also important for the UN General Assembly to launch consultations between nuclear-armed states and the rest of the international community. An existing proposal that is part of the Stockholm Initiative for Nuclear Disarmament calls for nuclear-weapon states “to deepen discussions on nuclear doctrine and declaratory policies, both among themselves and with the Non-Nuclear-Weapon States, at the upcoming NPT Review Conference and throughout the next NPT review cycle.”18

Finally, the new negative security assurance regime should aim to rebalance the enormous power asymmetry between nuclear-armed states and non-nuclear-weapon states. Such an asymmetry makes it challenging to keep nuclear-weapon states accountable. To do this, negative security assurances must be linked to domains that non-nuclear countries can reasonably control.

One such domain is economics. For countries seeking to receive negative security assurances, a possible way forward is to integrate these assurances into any economic agreement they sign with nuclear-weapon states. Given the disruption caused by the COVID-19 pandemic and the vulnerability of the supply chain, economic agreements, especially those with natural resource-endowed countries in the global South, are crucial for many nuclear-weapon states. Linking security and economic demands could make compliance by nuclear-armed states more likely. An important study on the relationship between the United States and its allies notes that “statistical studies of extended deterrence have found that political and economic connections between a deterrer and its protégé are a good indicator of the interests at stake for the deterring state. The greater the ties the more likely extended deterrence is to succeed.”19

The Limits of Security With Nuclear-Weapon States

These proposals probably would not have halted Putin’s plan to conquer Ukraine. In fact, it is reasonable to assume that, in high-stakes crises, almost nothing will cause a predatory nuclear-weapon state to change course. In addition, some of these proposals could be too costly for non-nuclear-weapon states that seek commercial deals with countries such as China and the United States. In some instances, countries in the global South may decide it is more important to sign trade agreements with great powers than to gain negative security assurances.

Finally, it will be argued that, after Ukraine, the time of progressive confidence-building steps between nuclear-armed states and the rest of the world has passed, that nuclear disarmament is more urgent than ever, and that efforts to achieve it should take precedence over modestly ambitious proposals. Although not wrong, in a time of great insecurity and higher nuclear risks, something ought to be done to bring together these two groups that have drifted further apart.

Establishing a process of confidence building between nuclear-weapon and non-nuclear-weapon states over the right of non-nuclear-weapon states to live in peace without the menace of nuclear weapons is an important starting point and something within reach. As a German official stated in a recent meeting,

In our eyes the rationale for moving forward with [negative security assurances] is simple: [they] serve as an important intermediary step on the way towards a world free of nuclear weapons and therefore constitute a concrete element of a step-by-step approach to nuclear disarmament. But they are—if granted and implemented in good faith—per se also an element of risk reduction in the overall strategic environment and a practical contribution to increasing confidence and trust in international relations.20

The pursuit of a nuclear-weapon-free world remains critical, indispensable, and non-negotiable. Yet, at this historical juncture, where near-anarchy reigns and normative principles are being lost, the international community must fully honor the request of many countries to be spared death by nuclear weapons.

 

ENDNOTES

1. Tanisha M. Fazal, “The Return of Conquest? Why the Future of Global Order Hinges on Ukraine,” Foreign Affairs, May/June 2022, https://www.foreignaffairs.com/articles/ukraine/2022-04-06/ukraine-russia-war-return-conquest.

2. “Nuclear-armed state” refers to all nuclear-weapon states, those within the nuclear Nonproliferation Treaty (NPT) and those outside.

3. George Bunn and Roland M. Timerbaev, “Security Assurances to Non-Nuclear Weapons States,” The Nonproliferation Review, Fall 1993, p. 11, https://www.nonproliferation.org/wp-content/uploads/npr/buntim11.pdf.

4. UN Security Council, S/RES/255, June 19, 1968.

5. The first set of negative security assurances was ultimately delivered by the United States, the United Kingdom, China, and the Soviet Union in the face of mounting pressure during the First Special Session of the UN General Assembly in 1978, but the statements were not harmonized and differed in scope and language. China’s statement was unconditional. The Soviet Union granted negative security assurances to non-nuclear-weapon states that did not host nuclear weapons on their territory. The UK and the U.S. statements delivered negative assurances, but made them conditional. Possible use of nuclear weapons was envisaged in case of an “attack from a nonnuclear weapon state against the territory of the UK and of the United States.” https://documents-dds-ny.un.org/doc/UNDOC/GEN/NR0/753/40/IMG/NR075340.pdf?OpenElement

6. Arms Control Association, “Nuclear Declaratory Policy and Negative Security Assurances,” March 2022: https://www.armscontrol.org/factsheets/declaratorypolicies#:~:text=These%20%E2%80%9Cpositive%E2%80%9D%20and%20%E2%80%9Cnegative,from%20pursuing%20nuclear%20weapons%20themselves.

7. Global Britain in a Competitive Age, The Integrated Review of Defense, Security, Development and Foreign Policy, March 2021: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975077/Global_Britain_in_a_Competitive_Age-_the_Integrated_Review_of_Security__Defence__Development_and_Foreign_Policy.pdf

8. Steve Miller, paper produced for an internal meeting of the Pugwash Conferences on Sciences and World Affairs, October 2018. In the paper, Miller recommends making no-first-use pledges more credible by lowering the readiness of the nuclear force and eliminating specific nuclear capabilities such as nonstrategic nuclear forces.

9. Ibid.

10. The protocol to the South Pacific Nuclear Free Zone Treaty was submitted on May 2, 2011. S. Treaty Doc. No. 112-2 (2011). The protocol to the African Nuclear-Weapon-Free Zone Treaty was submitted on May 2, 2011. S. Treaty Doc. No. 112-3 (2011). The protocol to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia was submitted on April 27, 2015. S. Treaty Doc. No. 114-2 (2015).

11. George Bunn, “The Legal Status of U.S. Negative Security Assurances to Non-Nuclear Weapon States,” The Nonproliferation Review, Vol. 4, No. 3 (Spring-Summer 1997): 1; George Bunn and Roland M. Timerbaev, “Security Assurances to Non-Nuclear-Weapon States: Possible Options for Change,” PPNN Issue Review, No. 7 (September 1996), p. 1.

12. UN Office for Disarmament Affairs, “France: Signature of Protocol III to the Pelindaba Treaty,” 2021, https://treaties.unoda.org/a/pelindaba_3/france/SIG/african_union.

13. Surya Subedi has argued that the Southeast Asian Nuclear Weapons Free Zone does not in any way contradict or challenge the Convention on the Law of the Sea nor does it impede freedom of passage. He notes, that “since Article 2(2) makes it clear that nothing in the Bangkok Treaty shall prejudice the rights of States under the [convention], the whole question of the transport of nuclear weapons through the Southeast Asian NWFZ depends on how the rules of the law of the sea, especially the provisions of the [convention], are interpreted. From this perspective, the Bangkok Treaty seems to alter little so far as the freedom of navigation, the right of innocent passage, the right of transit passage and the right of archipelagic sea lanes passage are concerned. The concern of the nuclear Powers about the effects of an NWFZ for Southeast Asia seemed to have stemmed because of the tendency of certain States of the region to interpret narrowly the right of transit and archipelagic sea lanes passage. The language of the Southeast Asia Nuclear-Weapon-Free-Zone Treaty in no way contradicts international treaties such as the Law of the Sea.” In Surya Subedi, Problems and Prospects for the Treaty on the Creation of a Nuclear Weapons-Free Zone in Southeast Asia, International Journal of Peace Studies, Volume 4 No 1, 1999, https://www3.gmu.edu/programs/icar/ijps/vol4_1/subedi.htm.

14. R.M. Marty M. Natalegawa, Statement on behalf of the Non-Aligned Movement (NAM) states-parties to the NPT, May 3, 2010, https://www.un.org/en/conf/npt/2010/statements/pdf/nam_en.pdf.

15. Javad Zarif, Statement before the 2015 NPT Review Conference on behalf of the NAM states-parties to the NPT, April 27, 2015, p. 3, https://www.reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/statements/27April_NAM.pdf.

16. 2020 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, "Nuclear Disarmament: Working Paper Submitted by Algeria," NPT/CONF.2020/WP.11, October 29, 2021.

17. Sylvia Mishra, “The Ukraine Crisis and the Global Nuclear Order,” Truman Center for National Policy, March 4, 2022, https://www.trumancenter.org/issues-posts/the-ukraine-crisis-and-the-global-nuclear-order.

18. “Annex: Stepping Stones for Advancing Nuclear Disarmament,” n.d., https://www.government.se/497342/globalassets/regeringen/lena-micko-test/stepping-stones-for-advancing-nuclear-disarmament.pdf.

19. Jeffrey W. Knopf, ed., Security Assurances and Non-Proliferation (Stanford: Stanford University Press, 2012), p. 9.

20. Peter Beerwerth, “CD Thematic Discussion on Negative Security Assurances (NSA)” (statement to the Conference on Disarmament, June 8, 2021), https://documents.unoda.org/wp-content/uploads/2021/06/20210608-Statement-DEU-for-web.pdf.


Francesca Giovannini is the executive director of the Project on Managing the Atom at the Belfer Center of the Harvard Kennedy School.

As the war in Ukraine rages and nuclear-armed Russia makes threats, do these security assurances still have meaning?

The Middle Eastern WMD-Free Zone and the NPT


July/August 2022
By Tomisha Bino

Regarded by Arab states as an integral part of the package that led to the indefinite extension of the nuclear Nonproliferation Treaty (NPT) in 1995, the “Resolution on the Middle East,” which calls for the establishment of a regional zone free of weapons of mass destruction (WMD), has become one of the more contentious issues discussed at NPT review conferences. At times referring to the resolution as the NPT’s “fourth pillar,” Arab states continue demanding its implementation and sometimes condition their support for a review conference final document on making progress on the zone issue.

Adoption of a resolution calling for creation of a zone free of weapons of mass destruction in the Middle East was central to the indefinite extension of the nuclear Nonproliferation Treaty (NPT) at the 1995 NPT Review and Extension Conference,  opened by UN Secretary-General Boutros Boutros-Ghali (L), conference president Jayantha Dhanapala of Sri Lanka (C), and conference secretary general Prvoslav Davinic of the former Yugoslavia. (Photo: Evan Schneider/UN)They also emphasize the responsibility of the NPT depositary states (Russia, the United Kingdom, and the United States) to ensure implementation of the resolution, which they co-sponsored. The zone issue is often seen as making or breaking consensus on the final document and will be a critical focus when the 10th NPT Review Conference is held in August in New York.1

Exasperated by the lack of progress on the zone’s creation, Arab states initiated through the UN General Assembly a conference process, which has held two sessions aimed at producing “a legally binding treaty establishing a Middle East zone free of nuclear weapons and other weapons of mass destruction.”

Despite the unclear fate of the Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action; heightened global nuclear tensions; and Israel’s continued noninvolvement, Middle Eastern states have been able to hold substantive discussions on several key aspects of the zone treaty. At this stage, the negotiations have addressed the general structure of a treaty, agreed on a decision-making mechanism, and identified topics to be addressed in future sessions. Throughout the second session, it was clear that regional states were keen to develop a joint strategy to address the zone during the upcoming review conference.

A Long Legacy

At the 1995 NPT Review and Extension Conference, the NPT depositary states were determined to secure the treaty’s indefinite extension without a vote. This offered an opportunity for Arab states, especially Egypt, to move forward their proposal for a WMD-free zone by conditioning their agreement to the indefinite NPT extension on the inclusion of a resolution on the zone. The United States and Egypt negotiated the resolution as part of the extension package deal, which “calls upon all states of the Middle East that have not yet done so, without exception, to accede to the treaty as soon as possible.”

Arab states insisted that the zone resolution include a specific reference to Israel, which has never joined the NPT and is believed to possess nuclear weapons. The United States, however, could not accept that demand, especially when other Middle Eastern states also had not joined the NPT. The eventual compromise removed the reference to Israel and “call[ed] upon all States in the Middle East to take practical steps in appropriate forums aimed at making progress towards…the establishment of an effectively verifiable” WMD-free zone.2

In advance of the review conference in 2000, Arab states aimed to strengthen the 1995 resolution. They won support for inviting the UN secretary-general to prepare papers on implementing the outcomes of the 1995 review conference, including the Resolution on the Middle East, and to submit them to the 2000 review conference.3

The background paper on the issue of the Middle East prepared by the UN Secretariat for the 2000 review conference noted that following the accession of Djibouti, Oman, and the United Arab Emirates to the NPT, all Middle Eastern states except Israel are states-parties to the treaty.4 This language was later adopted as part of the review conference final document, which Arab states viewed as a great success given that publicly identifying Israel as an NPT outlier was a long-standing goal. In return, the United States insisted that an acknowledgment of Iraq’s noncompliance with its International Atomic Energy Agency (IAEA) safeguards agreement also be included in the final document.5

The 2005 review conference was troubled even before it began as its preparatory committee disagreed over procedural and substantive matters. Several agreements reached during the 2000 review conference were questioned retroactively, including whether those outcomes were relevant.6 As a result, the 2005 review conference started without an agreed agenda or work program.

Israel and its nuclear program are key factors in the debate about a Middle Eastern zone free of weapons of mass destruction. Experts say Israel has roughly 80 nuclear weapons but the government has refused to confirm a weapons program. This is an undated photo of Israel's nuclear reactor at Dimona. (Photo by Getty Images)Although the issue of the Middle East played a minor role in the failed outcome of this conference, there were a few noteworthy developments. All chair summaries from the 2002, 2003, and 2004 preparatory committees reaffirmed the importance and validity of the Resolution on the Middle East from 1995 and called for the establishment of a mechanism within the NPT review process to promote the resolution’s implementation.7 The 2003 chair’s summary even referred to the “road map” developed by the Middle East Quartet that was working on Israeli-Palestinian peace efforts and noted that “a view was expressed that the road map could be an important step in the direction of the establishment of a Middle East zone free of nuclear weapons as well as other weapons of mass destruction.”

Responding to the road map reference, Egypt stated that “the creation of such zones should not be linked to political developments in the regions concerned.”8 Syria also objected, saying that “compliance with the NPT should not be conditional on any other measures and, in particular, that the creation of nuclear-weapon-free zones should not be tied to other issues.”9 At the 2005 review conference and within the subsidiary body focusing on regional issues, including the implementation of the 1995 Middle Eastern resolution, Egypt and Iran refused to allow any nonconsensus documents to be forwarded to the drafting committee, leaving it very little with which to work to produce the final document.10 Most of the 2005 review conference was consumed by organizational matters, leaving too little time to bridge divergent positions and produce a consensus document.

The 2010 review conference produced the most progress on the WMD-free zone, but it was not easy. Alison Kelly, who headed the Irish delegation and chaired the negotiations on the Middle Eastern zone, conducted marathon consultations with key stakeholders to achieve a consensus report. It contained a number of practical steps, including the decision to convene a conference in 2012 on the establishment of a Middle Eastern WMD-free zone, as well as the appointment of a host government and facilitator to this end.

Once the consensus final document was adopted, however, the United States expressed reservations about the paragraph that reaffirmed the “importance of Israel’s accession to the [NPT] and the placement of all its nuclear facilities under comprehensive IAEA safeguards.” It said the reference to Israel jeopardized the U.S. ability to help create the conditions needed for a successful Middle Eastern conference.

Egyptian Foreign Minister Sameh Shoukry addresses the 2015 Nuclear Nonproliferation Treaty Review Conference, during which Egypt made a proposal that set deadlines for a planned meeting on ridding the Middle East of weapons of mass destruction. (Photo by Timothy A. Clary/AFP/Getty Images)With the postponement of the 2012 Middle Eastern conference and the failure of all subsequent attempts to revive it, Arab states entered the 2015 NPT Review Conference determined to reaffirm the commitments made in 2010 and to adopt a concrete plan to implement them. The Arab Group pushed to have the UN secretary-general convene a WMD-free zone conference within six months after the review conference. A Russian working paper wanted the conference no later than March 1, 2016, nine months after the review conference.

Canada, the UK, and the United States rejected the language on the Middle Eastern zone in the draft prepared by the review conference president, Taous Feroukhi of Algeria, which reflected the Russian proposal. They said the zone conference needed to be held on the basis of arrangements freely agreed by states in the region. In closing remarks, the United States described the Arab states, especially Egypt, as “not willing to let go of these unrealistic and unworkable conditions included in the draft text.”

Since then, some experts have pointed to the WMD-free zone issue as “one of the main reasons behind the failure to produce a consensus final document” at the 2015 review conference.11 Others have cautioned that this argument is “at best misleading and, in some of its guises, disingenuous.”12 Yet, the former view has become the commonly held belief, to the chagrin of the Arab states.

A New Approach

Amid growing frustration, the Arab Group in 2018 tabled a proposal at the UN General Assembly First Committee on convening a conference on establishing a Middle Eastern WMD-free zone. The group acted a few months after the United States submitted a working paper to the 2018 NPT preparatory committee arguing that the NPT review cycles were not an appropriate forum for the zone issue.

Washington defined its role as a co-sponsor of the 1995 resolution as “supporting the regional states in undertaking practical steps and facilitating direct regional dialogue to establish conditions conducive to a Middle East free of all weapons of mass destruction and delivery systems.” Whether this was a factor in the Arab states’ decision to take the issue to the General Assembly is unclear. A League of Arab States resolution from March 2018, a month before the 2018 preparatory committee meeting, suggests the league already had decided to take action through the General Assembly on the 1995 resolution.13

The General Assembly adopted the Arab draft decision by a vote of 103–3 with 71 abstentions (Israel, Micronesia, and the United States were against). The UN secretary-general was asked to convene an annual, week-long conference at UN headquarters on producing a legally binding treaty establishing the zone. Israel called the decision “another platform to single out Israel,” while the United States described it as a “divisive, short-sighted approach” and one that “will cause profound damage to international efforts to advance” the Middle Eastern WMD-free zone.

Since then, the zone conference has held two sessions that yielded positive preliminary results and momentum. The first session took place November 18–22, 2019, with the participation of 21 Arab states and Iran. China, France, Russia, and the UK attended as observers. Having voted against convening the conference, Israel and the United States stayed away. Although debating procedural rules consumed much of the time, the conference issued two decisions on the presidency and the annual dates of future sessions. It also agreed on a political declaration that reaffirmed the commitment of participating states to the zone conference and urged those states that had not participated to do so in the next session.14

The second session, held November 29–December 3, 2021, also was attended by most members of the League of Arab States and Iran. As in the first session, Israel and the United States were absent. The meeting built on the first session’s momentum by overcoming some past disagreements, notably by establishing the conference rules of procedure and creating a mechanism for organizing intersessional work.

Kuwait, which served as president of the second session, followed the example of Jordan, which presided over the first session, in conducting extensive preconference consultations to shape the outcome of the meeting.

Significantly, the Kuwaiti presidency forged an agreement on procedural rules that specify that all conference decisions, whether on procedural or substantive matters, must be made by consensus. Another rule, on decision-making, states that the final text of a treaty on the zone can be adopted formally only if all conference members are present and vote in favor of the draft. Given that rule 2 defines “members of the conference” as all 22 Arab states, Iran, and Israel, Israel would have to reverse its opposition and join the process if the conference is to adopt a treaty text.

This language may be intended to give concrete form to the stated commitment of participating conference members to an inclusive process. It is unlikely, however, that Arab states will be able to change Israel’s decision not to participate by making overtures that solely address the conduct of the conference when Israel disagrees fundamentally with the conference’s approach and mandate.

The August Review Conference

Arab states see the upcoming NPT review conference as a crucial point for them to gain support or, at the least, acknowledgement for the process they have been building since 2018. It also will present an opportunity to gauge the Biden administration’s position on the zone conference, which will be revealed by whatever language prevails in the review conference final document. Although Israel and the United States broke consensus on the Middle Eastern zone resolution in the UN General Assembly in 2018 to 2020, the Biden administration changed that vote to an abstention in 2021. Whether this change reflects a change in position on the zone conference also might be revealed at the upcoming review conference.

An overview of the statements delivered during the general debate of the zone conference second session shed light on expectations for the NPT review conference. Most states highlighted the responsibility of the three NPT depositary states, as the co-sponsors of the 1995 resolution, to ensure implementation of that resolution and connected that to support for the zone conference. The statements were clearly aimed at the United States, the only one among the five permanent members of the UN Security Council that has not attended the first or the second sessions of the zone conference.

With the NPT review conference originally planned for roughly a month away from the second session of the zone conference, several states spoke about the link between the zone conference and the 1995 Middle East resolution.15 They stressed that one does not replace the other and that the zone conference represents an opportunity at long last to implement the 1995 resolution. These statements did not include specifics, however, about how the issue might feature at the NPT review conference.

The Egyptian statement held that the success of the zone conference second session would result in a positive outcome at the review conference, without explaining what that meant in practice. Qatar and Lebanon had more concrete suggestions, with the former suggesting that the zone conference submit a report to the review conference and the latter calling on the review conference to “express its strong support to the process launched by this [zone] conference…as an essential mechanism for the implementation of the 1995 Resolution on the Middle East.” Jordan’s statement called on the participating zone conference members to formulate a unified position ahead of the review conference.

Perhaps the clearest indicator of the result that Arab states would want to achieve at the review conference can be found in the Arab Group working paper submitted to the 2019 NPT preparatory committee. It recommended that the review conference “welcome and provide support” to the new zone conference process and urge Israel to participate in it. In making this recommendation, Arab states might have hoped for an outcome similar to that in 2000 and 2010, when recommendations in their working papers were reflected, at least partially, in the final documents. The outcome of the upcoming review conference is more likely to look like that from 2005, when changes in the global context and tensions between nuclear-weapon states impeded the conference.16

In looking at the history of nonproliferation and disarmament advances in the region and with the zone treaty, it is clear that many positive developments, such as the convening of the arms control and regional security working group following the 1991 Madrid peace conference, the dismantlement of Syria’s declared chemical weapons program, and the conclusion of the 2015 Iran nuclear deal, occurred when there was a conducive global environment and cooperation between major powers, especially Russia and the United States.17

Despite initial optimism that the Biden administration’s approach to nuclear diplomacy could positively impact the NPT, current global challenges and tensions, most acutely due to the war on Ukraine, could pose an insurmountable challenge for a constructive review conference.18 In such a climate, in contrast to previous review conferences, it is unlikely that the Middle East will be the issue that has the biggest impact on the review conference as some may fear.

 

ENDNOTES

1. Chen Zak Kane, “Pathways Forward for the ME WMDFZ Process and 2002 NPT Review Conference,” UN Institute for Disarmament Research, 2020, p. 8, https://unidir.org/sites/default/files/2020-04/ME%20WMDFZ%20Feb%20Conference%20Report%20-%20final_0.pdf; Michal Onderco and Leopoldo Nuti, eds., “Extending the NPT? A Critical Oral History of the 1995 Review and Extension Conference,” Woodrow Wilson International Center for Scholars, 2020, p. 149, https://www.wilsoncenter.org/publication/extending-npt-critical-oral-history-1995-review-and-extension-conference.

2. Onderco and Nuti, “Extending the NPT?” p. 130.

3. 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Report of the Preparatory Committee for the 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons,” NPT/CONF.2000/1*, May 21, 1999, para. 26–27.

4. 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Implementation of the Resolution on the Middle East Adopted by the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons: Background Paper Prepared by the United Nations Secretariat,” NPT/CONF.2000/7, April 10, 2000, para. 15.

5. Rebecca Johnson, “The 2000 NPT Review Conference: A Delicate, Hard-Won Compromise,” Disarmament Diplomacy, No. 46 (May 2000), http://www.acronym.org.uk/old/archive/46npt.htm.

6. John Simpson and Jenny Nielsen, “The 2005 NPT Review Conference: Mission Impossible?” Nonproliferation Review, Vol. 12, No. 2 (July 2005): 271–301.

7. The summary from the preparatory committee in 2004 was not issued. For a draft, see Rebecca Johnson, “Report on the 2004 NPT PrepCom,” Disarmament Diplomacy, No. 77 (May/June 2004), http://www.acronym.org.uk/old/archive/dd/dd77/77npt.htm.

8. Preparatory Committee for the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Summary Record of the 19th Meeting,” NPT/CONF.2005/PC.II/SR.19, June 30, 2003, para. 26–27.

9. Ibid., para. 32.

10. Simpson and Nielsen, “2005 NPT Review Conference.”

11. Nir Hassid, “Thinking Outside the Box: Preserving the NPT While Advancing the Middle East Weapons-of-Mass-Destruction-Free Zone,” The Nonproliferation Review, Vol. 24, Nos. 1–2 (October 2017): 155–166; Naeem Salik, “NPT Review Conference 2015 in Perspective,” CISS Insight Journal, Vol. 3, Nos. 1–2 (July 2015).

12. See Tomisha Bino, “The Pursuit of a WMD-Free Zone in the Middle East: A New Approach,” Chatham House, the Royal Institute of International Affairs, July 2017, https://www.chathamhouse.org/sites/default/files/publications/research/2017-07-27-WMDFZME.pdf. https://www.chathamhouse.org/2017/07/pursuit-wmd-free-zone-middle-east.

13. League of Arab States Ministerial Council resolution 8251, March 7, 2018, https://unidir.org/sites/default/files/2020-07/2018-03-07_EN_LAS%20Ministerial%20Council%20adopts%20SOC%20action%20plan%20for%20the%20implementation%20of%201995%20Resolution%20on%20the%20Middle%20East.pdf.

14. For a more detailed description of the first session of the conference, see Tomisha Bino, “A Middle Eastern WMD-Free Zone: Are We Any Closer Now,” Arms Control Today, September 2020, pp. 11–16.

15. When the second session was held November 29–December 3, 2021, the nuclear Nonproliferation Treaty review conference was planned for early January 2022. It was later postponed until April, and then August, 2022.

16. Simpson and Nielsen, “2005 NPT Review Conference.”

17. Kane, “Pathways Forward for the ME WMDFZ Process and 2002 NPT Review Conference.”

18. Rebecca D. Gibbons, “Nuclear Diplomacy in the Biden Administration,” European Leadership Network, January 2021, https://www.europeanleadershipnetwork.org/commentary/nuclear-diplomacy-in-the-biden-administration/.

 


Tomisha Bino is a researcher with the Middle East Weapons of Mass Destruction Free Zone project. Her expertise includes arms control, disarmament, nonproliferation, and Middle Eastern security policy.

The zone issue, often key to consensus on NPT review conference final documents, again will be a focus when the next conference takes place in August.

A Better Way to Detect the Origins of a Pandemic


July/August 2022
By Angela Kane and Jaime Yassif

The war in Ukraine has caused severe disruption to regional and global security, including raising concerns about the potential use of unconventional weapons.1 Not least of these concerns is the dangerous Russian disinformation campaign alleging biological weapons development in Ukraine, which has led to fears that Russia itself may use chemical or biological weapons in Ukraine as part of a false flag operation.2 In addition to highlighting the critical need to guard against biological risks, these allegations have drawn attention to serious gaps in the global biosecurity and pandemic preparedness architecture.

Russian Ambassador Vasily Nebenzia holds documents as he speaks during the March 11 UN Security Council meeting called by Russia to discuss its claim of U.S.-supported chemical and biological weapon labs in Ukraine. Kyiv and Washington denied the allegations and called them Russian disinformation. (Photo by Michael M. Santiago/Getty Images)This development comes in the midst of continued uncertainty and debate about the origins of the COVID-19 pandemic, which the international community may never fully resolve. Regardless, the world must be better prepared for future biological events that could arise from a wide range of sources, including naturally emerging outbreaks, deliberate biological weapons attacks, or laboratory accidents, with potentially catastrophic consequences. The ability to rapidly discern the source of emerging pandemics is critical to mitigating their effects in real time and to protecting against future risks.

To meet this need, it will be important to bolster the capabilities of the United Nations to investigate the origins of high-consequence biological events. This includes strengthening and investing significantly more resources in existing capabilities such as the UN Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, which has the authority to investigate allegations of deliberate biological weapons use.3

The World Health Organization (WHO) is already engaged in efforts to strengthen its capabilities to respond to outbreaks of ambiguous origin, including by establishing the Scientific Advisory Group for the Origins of Novel Pathogens.4 Although these initiatives are laudable, WHO’s key operational strength, as well as the political comfort zone of its member states, remains its ability to assess and respond to naturally emerging infectious disease outbreaks. It is unclear how far WHO is willing or able to go in assessing origins of human-caused biological events, such as accidents or biological weapons attacks.

As a result, a critical gap remains between the authorities and capabilities of existing mechanisms across the UN system. Although uncertainty persists as to whether SARS-CoV-2, the virus responsible for COVID-19, emerged naturally or was accidentally released from a laboratory, the secretary-general’s mechanism cannot be deployed in this case because its mandate is limited to investigating allegations of deliberate attacks with biological or chemical weapons. At the same time, WHO has experienced difficulties investigating the source of the COVID-19 pandemic due to technical constraints coupled with the political realities of the organization’s need to maintain trust and support among all its member states.

Furthermore, the Biological Weapons Convention (BWC), whose review conference will commence in November 2022, contains procedures for convening consultative meetings of states-parties or for lodging with the UN Security Council allegations about the development, possession, or use of biological weapons.5 Such complaints could be taken up by the Security Council and investigated, yet in the 47 years since the BWC came into force, no complaint has been made, and no investigation has ever been conducted. This is despite ongoing concerns among BWC states-parties about noncompliance, including serious allegations of deliberate biological weapons use.6 Such inaction calls into question the utility of and trust in existing procedures.

A Promising Response

How can this gap among existing UN mechanisms be addressed? In a 2020 report, the Nuclear Threat Initiative, working with international partners, explored the possibility of establishing a “joint assessment mechanism” to determine the source of high-consequence biological events of unknown origin.7 The report was based on a senior-level exercise hosted in conjunction with the Munich Security Conference, where participants were presented with a fictional scenario in which the world confronts a disease outbreak from a dangerous, apparently human-engineered pathogen suspected of originating in a country with biotechnology ambitions. Ultimately, an international investigation reveals that the suspect country had been conducting illicit biological weapons research, and an accidental release from one of its laboratories was the source of the outbreak. In the scenario, the resulting global pandemic leads to more than 50 million deaths worldwide.

The Munich Security Conference and the Nuclear Threat Initiative (NTI) have hosted senior-level tabletop exercises to identify gaps in global capacities to prevent and respond to high-consequence biological events. Participants from this 2019 exercise included Angela Kane (L to R),senior fellow at the Vienna Center for Disarmament and Non-Proliferation; Elhadj As Sy, secretary-general of the International Federation of Red Cross and Red Crescent Societies; Ernest Moniz, co-chair and CEO of NTI; and Sam Nunn, NTI co-chair. (Photo courtesy of the Nuclear Threat Initiative)The exercise highlighted how determining whether the outbreak was due to poor laboratory practices or malicious intent proved critical to the effectiveness of the international response. The idea of the joint assessment mechanism emerged as a way to provide this capability, and since then, the concept has been further refined in consultation with international experts and stakeholders. This proposed mechanism would address cases where there is ambiguity about the source of a biological event—whether it emerged naturally or was deliberately or accidentally released from an academic, commercial, or governmental laboratory. This exercise took place in early 2020 before the COVID-19 pandemic. Subsequent developments have underscored the importance of rapidly discerning pandemic origins and the salience of the proposed joint assessment mechanism. Given the devastating global effects of COVID-19, UN Secretary-General António Guterres called in 2021 for more investment in preparedness and response capabilities to combat future pandemics.8 Now, the war in Ukraine has raised the specter of another potentially catastrophic risk: the possibility of Russia covertly using chemical or biological weapons under a false flag operation.

The joint assessment mechanism should take an approach that is rapid, transparent, evidence based, and legitimate in the eyes of the international community. It would include a standing capability with a small team responsible for integrating and analyzing data from multiple sources on an ongoing basis, as well as the capability to launch on-site assessments when necessary.

This should be a 21st century mechanism, taking advantage of new tools, methods, and technologies, such as bioinformatics, data science, and artificial intelligence, to build a capability suited to today’s threat environment. Substantive questions remain, however, in discussions with international stakeholders and experts regarding how best to build political support for the joint assessment mechanism, what its core mandates and functions would be, how it would relate to existing mechanisms, how to incentivize compliance, and how to incorporate modern scientific and technological tools.

One core challenge would be securing the cooperation of a country deemed to be the source of the biological or chemical event. Such engagement will be critical to a credible process and would require strong incentives and global norms to encourage cooperation.

Establishing a home for this mechanism within the office of the UN secretary-general would provide the needed authority and flexibility to activate and deactivate the mechanism as necessary, as well as pull together relevant other resources from across the UN system.

No one knows where the next global biological catastrophe will come from, nor does anyone know when it will occur. Having the capacity to establish the facts about an outbreak of unknown origin will improve the international community’s ability to prevent or respond effectively to the next biological catastrophe. If designed correctly, the mechanism could also deter bad actors from employing biological weapons by making it far more likely that they would get caught.

The COVID-19 pandemic has demonstrated the need to fill critical gaps in global capabilities, as well as to establish public trust in the source of relevant information. The joint assessment mechanism could be the instrument to achieve both.

ENDNOTES

1. Ahmet Üzümcü, “Will Chemical Weapons Be Used in Ukraine?” Project Syndicate, March 15, 2022, https://www.project-syndicate.org/commentary/will-chemical-weapons-be-used-in-ukraine-by-ahmet-uzumcu-2022-03.

2. Carol E. Lee and Teaganne Finn, “U.S. Warns Russia Could Use Chemical Weapons in False-Flag Operation in Ukraine,” NBC News, March 9, 2022, https://www.nbcnews.com/politics/national-security/us-warns-russia-use-chemical-weapons-false-flag-operation-ukraine-rcna19391.

3. UN Office for Disarmament Affairs (UNODA), “Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons (UNSGM),” n.d., https://www.un.org/disarmament/wmd/secretary-general-mechanism/ (accessed June 25, 2022).

4. World Health Organization, “Scientific Advisory Group for the Origins of Novel Pathogens,” n.d., https://www.who.int/groups/scientific-advisory-group-on-the-origins-of-novel-pathogens-(sago) (accessed June 25, 2022).

5. UNODA, “Biological Weapons Convention,” n.d., https://www.un.org/disarmament/biological-weapons/ (accessed June 25, 2022).

6. Jonathan B. Tucker, “The ‘Yellow Rain’ Controversy: Lessons for Arms Control Compliance,” The Nonproliferation Review, Spring 2001, pp. 25–42, https://www.nonproliferation.org/wp-content/uploads/npr/81tucker.pdf.

7. Beth Cameron et al., “Preventing Global Catastrophic Biological Risks,” Nuclear Threat Initiative (NTI), 2020, https://media.nti.org/documents/NTI_BIO_TTX_RPT_FINAL.pdf; Angela Kane, Jaime M. Yassif, and Chris Isaac, “Joint Assessment Mechanism to Determine Pandemic Origins,” NTI, n.d., https://www.nti.org/about/programs-projects/project/joint-assessment-mechanism-to-determine-pandemic-origins/ (accessed June 25, 2022).

8. “Our Common Agenda: Report of the Secretary-General,” United Nations, 2021, https://www.un.org/en/content/common-agenda-report/assets/pdf/Common_Agenda_Report_English.pdf.

 


Angela Kane is the Sam Nunn Distinguished Fellow at the Nuclear Threat Initiative (NTI) with a focus on global threat reduction. Previously, she served at the United Nations as assistant secretary-general for political affairs and high representative for disarmament. Jaime Yassif is the NTI vice president of Global Biological Policy and Programs, overseeing work on reducing global catastrophic biological risks, strengthening biosecurity, and advancing global health security.

The United Nations needs to bolster its capabilities to investigate the origins of high-consequence biological events.

DOCUMENT: U.S. President’s Letter to the Arms Control Association

U.S. President’s Letter to the Arms Control Association

Will Domestic Politics Trump Nonproliferation in Stalled Iran Deal?


June 2022
By Barbara Slavin

Only a few years ago, the notion that Iran could be weeks away from amassing sufficient material for a nuclear weapon would have generated a massive crisis in Washington and monopolized international diplomacy. Yet, there seems to be little palpable sense of urgency today, despite the fact that Iran is enriching uranium to near weapons grade and is on the verge of the proverbial breakout about which Iran hawks have warned so often in the past.1 Meanwhile, negotiations on restoring compliance with the 2015 Joint Comprehensive Plan of Action (JCPOA) and rolling back Iran’s nuclear advances have been in limbo since mid-March.

A Shahab-3 surface-to-surface missile is displayed in Tehran next to a portrait of Iranian Supreme Leader Ayatollah Ali Khamenei at a 2021 exhibition marking the 1980–88 Iran-Iraq war. (Photo by Atta Kenare/AFP via Getty Images)In the U.S. view, the ostensible reason for the impasse is an Iranian demand for sanctions relief that goes beyond what is required by the JCPOA. Iran has been seeking removal of the foreign terrorist designation of a powerful branch of the Iranian military, the Islamic Revolutionary Guard Corps (IRGC). The U.S. Department of State added this designation in 2019 as the Trump administration ran low on new targets to sanction under its “maximum pressure” campaign. The Biden administration, which says it wants to revive the JCPOA, has indicated that it would be willing to lift the designation, which has little practical effect because the IRGC remains subject to numerous other U.S. sanctions, if Iran makes a gesture of its own.2

That could entail an Iranian promise to engage in follow-on talks on regional issues or a pledge not to try to kill former U.S. officials implicated in the 2020 assassination of Iranian General Qassem Soleimani, head of the Qods Force branch of the IRGC.3 Iran has refused so far, although efforts to find a mutually acceptable compromise continue.

In many ways, the issue appears to be an excuse and not the real cause for the diplomatic deadlock. Other factors have led to the delay in restoring compliance with the JCPOA, in particular, the war in Ukraine. With Russian forces committing atrocities daily in Ukraine and the Western world focused on punishing Russia and rearming the Ukrainians, there is less political bandwidth left to deal with the Iran issue.

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The merits of restoring the JCPOA also have come under increasing scrutiny in the United States and Iran. The landmark deal, intended to contain Iran’s nuclear ambitions and to reintegrate Iran into the global economy, never fulfilled its potential, given that it had only nine months of full implementation before Donald Trump was elected U.S. president in 2016. The agreement started to fall apart after the Trump administration unilaterally quit in 2018 and reimposed all the sanctions lifted by the JCPOA. The administration then added more sanctions even though Trump officials acknowledged Iran was complying with the deal at that time. Iran eventually ramped up its nuclear activities, busting through the limitations established by the JCPOA on stockpiles, enrichment levels, and use of advanced centrifuges, as well as provisions for strict international monitoring.

As of February 2022, Iran possessed more than 3,000 kilograms of enriched uranium. That is more than 10 times the stockpile allowed under the JCPOA and includes more than 30 kilograms enriched to 60 percent uranium-235, perilously close to weapons grade.4 By May 10, the stockpile was at more than 40 kilograms of uranium enriched to 60 percent, Director-General Rafael Mariano Grossi of the International Atomic Energy Agency (IAEA) told the European Parliament.5 Although much of this activity can be reversed, the knowledge Iranian scientists and engineers have acquired is permanent, meaning that the long-term nonproliferation benefits of the agreement, if restored, would inevitably be less than when the deal was implemented in 2016.6

U.S. officials continue to assert that the JCPOA, whose limitations on enriched uranium stockpiles are supposed to last until 2031, remains beneficial. “We are still at a point where, if we were able to negotiate a mutual return to compliance, that breakout time would be prolonged from where it is now,” State Department spokesman Ned Price said on May 4, 2022.7 “We would have greater transparency. There would be those permanent, verifiable limits reimposed on Iran. That would be in our national security interest.”

Yet, the domestic political climates in Iran and the United States have shifted in ways that have made compromise more difficult. It remains to be seen if there is sufficient political will and creativity to end the impasse.

Weakened Iranian Pragmatists

Trump’s abrogation of the JCPOA gravely undermined the so-called pragmatist camp in Iran that had negotiated and championed the deal, making President Hassan Rouhani and his team look foolish and naïve. This perception complicated negotiations even after the Biden administration took office, with Iran refusing to sit directly with the U.S. delegation in Vienna and initially seeking some form of guarantee that a subsequent U.S. administration would not quit the deal again. Nevertheless, substantial progress was made in indirect talks, which resumed in April 2021.

Negotiations paused in June 2021 for the Iranian presidential elections. Rouhani’s successor, Ebrahim Raisi, was handpicked by Supreme Leader Ayatollah Ali Khamenei in large part for his hard-line views on domestic and foreign policy, as well as his fealty to Khamenei. Raisi, like Khamenei, was critical of the JCPOA and named a cabinet of like-minded officials.8 The new Iranian administration then waited until November 2021 to send a team to Vienna, where talks resumed with the other parties to the JCPOA (China, France, Germany, Russia, the United Kingdom, and the United States) plus the European Union.

As with the previous team, the Iranians refused to meet directly with U.S. negotiators, arguing that the United States had forfeited its right to be considered a JCPOA party by quitting the agreement without cause. The Iranians also initially demanded the unfreezing of billions of dollars of their assets stuck in foreign banks9 as a precondition for negotiations, a nonstarter for Washington while the Iranian nuclear program continued to advance.

There was also a wrangle over a separate but related issue: a long-running dispute between Iran and the IAEA over Iran’s alleged efforts nearly two decades ago related to possible nuclear weapons development. An 11th-hour trip to Tehran by Grossi in early March 2022 resulted in an agreement that Iran would provide additional documentation about suspect sites in time for the IAEA Board of Governors meeting in June.10 Grossi complained on May 10 in a session with the European Parliament that Iranian officials have been slow to provide clarification about the origin of traces of enriched uranium found at the sites.11

A more positive development had occurred on February 4, when the Biden administration announced that it was waiving sanctions on foreign cooperation with Iran’s civil nuclear program. Price said that the waivers were in the U.S. “vital national interest regardless of what happens with the JCPOA.”12 In fact, the waivers were necessary prerequisites to a deal because they facilitate the disposition of Iran’s excess stockpile of enriched uranium and the resumption of modifications to the Arak heavy-water reactor to make it more proliferation resistant. The waiver would also allow an underground site at Fordow to cease uranium enrichment and return to the production of isotopes for medical use as specified by the original agreement, Price explained.

The Ukraine Effect

According to participants, negotiators completed a 27-page draft agreement in mid-March that specified the steps Iran would take to roll back its nuclear progress in return for relief from U.S. nuclear-related sanctions.13 Talks had been interrupted in late February by a Russian effort to exploit the JCPOA to circumvent some of the sanctions imposed on Russia over the invasion of Ukraine. In the end, the Russians backed down and accepted the terms of the original deal, under which Russia agreed to accept excess enriched U-235 from Iran and provide other civil nuclear cooperation that does not deal with broader Iranian-Russian trade issues. Nevertheless, the momentum in Vienna was broken by the war in Ukraine and the Russian attempt to hold the Vienna talks hostage to sanctions exemptions. Despite valiant efforts by EU envoy Enrique Mora14 and other would-be mediators, the stalemate has continued.

In interviews with ACT and in Iranian press reports, Iranian analysts have stated that, for domestic political reasons, Raisi feels he needs to squeeze more concessions from the United States than the Rouhani team obtained, resulting in the demand to take the IRGC off the list of foreign terrorist organizations. At the same time, Iran is no longer feeling the pinch of U.S. secondary sanctions to the extent it was a few years ago. Iran has managed to increase its oil exports, primarily to China, to more than one million barrels a day. Given the steep rise in prices due to the war in Ukraine and sanctions on Russia, Iran is earning sufficient revenues to meet its basic needs.15 Even if the United States could enforce secondary sanctions on Iranian oil customers, there is little motivation to do so at a time of global shortages and sky-high energy prices.

Biden’s Ambivalence

As the Iran issue appears to have lost urgency, the Biden administration also seems increasingly ambivalent about the value of the JCPOA when weighed against the potential domestic political costs of compromising with a long-time U.S. adversary. President Joe Biden did not announce a U.S. return to the JCPOA on the first day of his presidency as many proponents of the deal had hoped. He did appoint an experienced Iran envoy, Rob Malley, who had participated in the original negotiations, within a week of taking office. Yet, Malley took months consulting with U.S. allies and Middle Eastern partners such as Israel, which opposed the original deal, and with Arab countries, which were concerned about the increased oil revenues that Iran would receive and possibly divert to its regional partners.

Biden administration officials such as Secretary of State Antony Blinken and National Security Adviser Jake Sullivan also talked about their desire for a “longer and stronger” deal before the old one could be revived.16 This language reflected a genuine desire to improve on the original and an effort to placate powerful deal opponents among Democrats such as Senate Foreign Relations Committee Chairman Robert Menendez (N.J.), who had the power to slow the confirmation of Biden appointees in a closely divided Senate.17 As a result, precious time was lost before the Iranian presidential elections and the replacement of the Iranian negotiation team with JCPOA skeptics.

With U.S. midterm elections now approaching, the Biden administration seems particularly leery of acceding to Iran’s demands regarding the IRGC. Although it is largely a conscript organization, IRGC elements, particularly the Qods Force, have been implicated in attacks on U.S. military forces in the Middle East, as well as in support of anti-U.S. nonstate actors, such as Lebanon’s Hezbollah, Yemen’s Houthis, and Iraq’s Popular Mobilization Units. Biden appears concerned about looking weak and the impact this might have on select races in November when Democrats are at risk of losing control of the House and Senate.

For Biden, the JCPOA was never the signature issue it was for President Barack Obama, who considered the deal his most important foreign policy achievement. Biden has been much more engaged in solidifying NATO in the face of Russian aggression and is also eager to focus on the challenge of China. He appears unwilling to expend as much political capital as Obama did on the Iran agreement even though public opinion polls show that the deal is more popular in the United States now than it was in 2015 and experts acknowledge that there is no realistic plan B for containing Iran’s nuclear ambitions in the long term.18

Iran’s Goal

One possible reason for the lack of urgency in Washington over Iran’s nuclear advances is that the U.S. intelligence community continues to find no evidence that Iran has resumed work on developing an actual nuclear weapon, despite its growing stockpile of enriched uranium.19 Iran has always denied that it seeks to build nuclear weapons, but the fact that it was found to have possessed a clandestine program two decades ago20 and that its cooperation with the IAEA has been less than stellar has fueled suspicion and concern. Still, Iran’s program has been the slowest moving in the history of nuclear proliferation, given that its activities began in the 1950s under the U.S.-led Atoms for Peace initiative.

Since Iran’s nuclear work first began, Israel, India, Pakistan, and North Korea have built nuclear arsenals, but Iran has not. The Iranian program was suspended following the 1979 Islamic Revolution, when Western companies halted work on nuclear projects in Iran. The program was revived in the 1980s during the Iran-Iraq war when Iran feared that Iraq was developing nuclear weapons. Progress in the 1990s was slow, inhibited by successful U.S. appeals to Russia and China, but picked up in the mid-2000s after the 2005 election of Iranian President Mahmoud Ahmadinejad. The organized weapons program halted in 2003 and certain weaponization-related activities continued until 2009, but there has been no evidence of illicit weapons work since then, according to the IAEA and the U.S. National Intelligence Council. The JCPOA halted and rolled back the program significantly until the Trump withdrawal.

As a signatory of the nuclear Nonproliferation Treaty, Iran has pledged to remain free of nuclear weapons, a pledge it reiterated in the preamble of the JCPOA. The key provisions of the agreement were designed to make it extremely difficult for Iran to violate that pledge without being detected. If Iran returns to compliance again, it must blend down or export hundreds of tons of excess U-235 and remove advanced centrifuges. These actions must be verified and monitored by the IAEA, with no time limits on that cooperation, to provide confidence that Iran cannot “sneak out” and amass material clandestinely for a bomb. Iran, under its interpretation of the JCPOA, says it is entitled to breach these limits again if the United States does not fulfill its obligations to waive key sanctions on Iran’s oil exports and financial transactions.21

Supporters of the agreement concede that, because of the additional technical knowledge that Iran has accumulated since the United States unilaterally withdrew from the JCPOA in 2018, Iran’s ability to break out and amass sufficient material for a single nuclear weapon has been significantly increased.22 When combined with the limitations on uranium stockpiles and IAEA monitoring, however, a restored agreement should still provide sufficient time for the international community to react should violations occur. Without an agreement, Iran could continue amassing larger and larger quantities of U-235 enriched to higher and higher levels. This activity would be inherently destabilizing. It could spark a nuclear arms race in the region, prompting Saudi Arabia in particular to acquire a nuclear arsenal, and provoke new sabotage or other kinds of attacks on Iran by Israel or even the United States, both of which have vowed to never allow Iran to develop nuclear weapons.

The Role of Congress

Because the agreement would be a restoration of the original, not a rewrite, the Biden administration has argued that it is not obliged to submit the deal for formal review by Congress under the Iran Nuclear Agreement Act of 2015.23 Malley testified on May 25 before the Senate Foreign Relations Committee, however, that the administration will invoke the law if a deal is struck to allow Congress to publicly debate the issue.24 It is extremely doubtful that a veto-proof majority of two-thirds of the House and Senate could be assembled to block restoration of the JCPOA. Even so, Republicans are united against the deal; even some Democrats, most prominently those who did not support the agreement in 2015, have expressed concern that it does not cover non-nuclear issues such as Iran’s growing arsenal of ballistic missiles and drones.25

Senator John Hoeven (ND), at podium, and other Republican senators hold press conference at the U.S. Capitol in March to discuss their objections to negotiations aimed at restoring Iranian and U.S. compliance with the 2015 Iran nuclear deal.  (Photo by Anna Moneymaker/Getty Images)A more serious issue is what might happen in 2024 if a Republican is elected president. Trump and other GOP hopefuls are opposed to the JCPOA and might follow the precedent set by Trump in 2018. It will be important for supporters of the agreement to underline the negative consequences of the Trump withdrawal for U.S. nonproliferation and regional security interests. It will also be key for the United States and other parties to intensify efforts to deescalate broader tensions between Iran and its neighbors and between Iran and Israel to build a stronger foundation for the JCPOA.

Fortunately, Iran, a Shia theocracy, has already made some progress toward improved relations with its Sunni Arab rivals Saudi Arabia and the United Arab Emirates. Iran and Israel remain bitter adversaries, but the removal of Benjamin Netanyahu as Israeli prime minister and the formation of a broad coalition government in Israel has led to less prickly relations between Israel and the Biden administration. There was also a brief pause in Israeli attacks on Iranian nuclear scientists and facilities. That appears to have ended, however, with the May 22 assassination of an IRGC officer in Tehran and a mysterious "explosion" May 26 near the Parchin military facility that killed an Iranian engineer.26

Much will depend on Iran’s evaluation of the material benefits it is slated to receive if it returns to compliance with the JCPOA. Iranians have suffered greatly from Trump’s maximum-pressure campaign, not to mention the COVID-19 epidemic, endemic economic mismanagement, and corruption. According to Iranian statistics, the percentage of Iranians classified as poor has doubled over the past three years to more than a third of the population.27 Inflation is higher than 40 percent, and unemployment is also in double digits. The waiving of U.S. secondary sanctions on key sectors of the Iranian economy, especially oil and gas, and the repatriation of some $100 billion in hard currency assets would provide a substantial, if temporary, boost to Iran’s economy. To sustain these benefits, Iran would need to institute reforms of its own, increasing transparency in its banking sector, reducing consumer subsidies, and tackling corruption more effectively.

Iran’s Foreign Policy Orientation

Another unfortunate result of the maximum-pressure campaign and a factor in Iran’s ambivalence about returning to compliance with the JCPOA has been the solidification of the Iranian regime’s anti-Western orientation. The U.S. withdrawal from the JCPOA vindicated Khamenei’s view that the United States is untrustworthy and led him to boost Iran’s economic dependence on China and strategic cooperation with Russia, countries that do not criticize the Islamic Republic for human rights abuses or foreign adventurism. This orientation does not reflect the views of many Iranian people, who traditionally have looked toward Western countries for trade and investment, as well as for cultural ties, underscoring the fact that a large Iranian diaspora resides primarily in the United States, Canada, Europe, and Australia. Regardless, the “look to the East” policy is still supported by hard-liners who now control all elements of the Iranian government and is important to their domestic political power base.28

Iranian President Ebrahim Raisi speaks in May to Iran’s first international event on privatization. (Photo credit: Iranian government website)When the original nuclear deal was reached, supporters made clear that it was valuable on its own merits. Still, there was hope that the JCPOA, as the product of unprecedented, direct, high-level U.S.-Iranian diplomacy, would lead to some broader détente and even normalization of ties between Washington and Tehran. As then-Iranian Foreign Minister Javad Zarif famously put it, the JCPOA could be “the foundation, not the ceiling” of Iran’s foreign relations, including with the United States.29

Those hopes have been dashed by the Trump withdrawal and the political backlash against pragmatists in Iran. That said, a revived JCPOA is a prerequisite for any improvement in bilateral ties, including the release of jailed dual nationals and a resumption of people-to-people engagement. It would give the United States a seat at the table again in the joint commission that monitors the JCPOA and thus a venue to raise issues that go beyond the nuclear file. It would facilitate Western support for programs to address climate change and other severe threats to the Iranian people and to the world at large. It would also make it easier for Iran to engage with its neighbors on deescalating tensions and resuming normal diplomatic and economic interaction.30

Despite anti-government protests in Iran regarding the poor economy and harsh repression of civil society, the Iranian system has withstood immense challenges and does not appear likely to fall in the near future. It is incumbent on U.S. policymakers to continue to express their views on Iranian policies that are harmful to the Iranian people and to the interests of the United States and its allies and partners. Yet, one lesson of the past four, if not 40, years has been that the United States should use opportunities to lessen tensions when it is in the interest of both countries and the broader Middle East. As former Deputy Secretary of State Richard Armitage once said, “Diplomacy is the art of letting the other guy have our way.”31

If the JCPOA can be revived, it will show that diplomacy can achieve what military conflict cannot. If it finally collapses, it will sadly confirm that the agreement was merely the exception that proved the rule in four decades of U.S.-Iranian enmity.

 

ENDNOTES

1. “White House Says Iran Is ‘a Few Weeks or Less’ From Bomb Breakout,” Times of Israel, April 27, 2022.

2. “Secretary of State Blinken Testifies in Senate Foreign Relations Hearing 4/26/22,” April 27, 2022, https://www.rev.com/blog/transcripts/secretary-of-state-blinken-testifies-in-senate-foreign-relations-hearing-4-26-22-transcript.

3. Laura Rozen, “U.S. on Iran Deal Deadlock: ‘We Know the Status Quo Can’t Endure for Long,’” Diplomatic, May 4, 2022, https://diplomatic.substack.com/p/us-on-iran-deal-deadlock-we-know?s=w.

4. International Atomic Energy Agency (IAEA) Board of Governors, “Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015),” GOV/2022/4, March 3, 2022, pp. 9–10.

5. Rafael Mariano Grossi, “Exchange of Views With European Parliament: The Work of the IAEA at an Unprecedented Moment in History,” May 10, 2022, https://www.europarl.europa.eu/cmsdata/248145/EP_IAEA_20220510dg.pdf.

6. “U.S. Sees Iran’s Nuclear Program as Too Advanced to Restore Key Goal of 2015 Pact,” The Wall Street Journal, February 3, 2022.

7. U.S. Department of State, “Department Press Briefing—May 4, 2022,” May 4, 2022, https://www.state.gov/briefings/department-press-briefing-may-4-2022/.

8. Mehrzad Boroujerdi, “Who’s on Iran’s Current Nuclear Negotiating Team? Some Have Controversial Pasts,” IranSource, January 11, 2022, https://www.atlanticcouncil.org/blogs/iransource/whos-on-irans-current-nuclear-negotiating-team-some-have-controversial-pasts/.

9. Barbara Slavin, “Iran Offers Less for More as Vienna Talks Stall,” IranSource, December 6, 2021, https://www.atlanticcouncil.org/blogs/iransource/iran-offers-less-for-more-as-vienna-talks-stall/.

10. IAEA, “Joint Statement by HE Mr. Mohammad Eslami, Vice-President and President of the Atomic Energy Organization of Iran, and HE Mr. Rafael Grossi, Director General of the International Atomic Energy Agency,” March 5, 2022, https://www.iaea.org/newscenter/pressreleases/joint-statement-by-he-mr-mohammad-eslami-vice-president-and-president-of-the-atomic-energy-organization-of-iran-and-he-mr-rafael-grossi-director-general-of-the-international-atomic-energy-agency.

11. “IAEA Warns That Iran Not Forthcoming on Past Nuclear Activities,” Reuters, May 10, 2022.

12. U.S. Department of State, “Department Press Briefing - February 7, 2022,” https://www.state.gov/briefings/department-press-briefing-february-7-2022/.

13. Stephanie Liechtenstein and Nahal Toosi, “Iran Nuclear Talks Freeze Amid Terrorist Label Spat—Even With Deal on the Table,” Politico, April 28, 2022, https://www.politico.eu/article/iran-nuclear-talks-freeze-amid-terrorist-label-spat-even-with-deal-on-the-table/.

14. Laurence Norman, “Europe to Make Fresh Push to Revive Iran Nuclear Deal,” The Wall Street Journal, May 1, 2022.

15. Parisa Hafezi, “Analysis: Rising Oil Prices Buy Iran Time in Nuclear Talks, Officials Say,” Reuters, May 5, 2022.

16. Steven Erlanger and David E. Sanger, “U.S. and Iran Want to Restore the Nuclear Deal. They Disagree Deeply on What That Means,” The New York Times, May 9, 2021.

17. A U.S. negotiator stated in February 2021 that Menendez was a key factor inhibiting U.S. willingness to quickly return to compliance with the JCPOA. U.S. official, conversation with author, Washington, D.C., February 13, 2022.

18. Matthew Kendrick, “Many U.S. Voters Support a Binding Nuclear Deal With Iran. That Might Not Count for Much,” Morning Consult, February 16, 2022, https://morningconsult.com/2022/02/16/iran-deal-polling-us-voters/; Atlantic Council, “Is There a Plan B for Iran?” YouTube, December 9, 2021, https://www.youtube.com/watch?v=H4jLhkO2dHU.

19. U.S. Office of the Director of National Intelligence, “Annual Threat Assessment of the U.S. Intelligence Community,” February 2022, https://www.dni.gov/files/ODNI/documents/assessments/ATA-2022-Unclassified-Report.pdf.

20. U.S. National Intelligence Council, “National Intelligence Estimate; Iran: Nuclear Intentions and Capabilities,” November 2007, https://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/20071203_release.pdf.

21. Francois Murphy, Parisa Hafezi, and John Irish, “Exclusive: Iran Nuclear Deal Draft Puts Prisoners, Enrichment, Cash First, Oil Comes Later - Diplomats,” Reuters, February 17, 2022.

22. Laurence Norman, “U.S. Sees Iran’s Nuclear Program as Too Advanced to Restore Key Goal of 2015 Pact,” The Wall Street Journal, February 3, 2022.

23. Iran Nuclear Agreement Review Act of 2015, 42 U.S.C. § 2160e (2015).

24. U.S. Special Envoy for Iran Robert Malley, "The JCPOA Negotiations and United States’ Policy on Iran Moving Forward," Testimony before the Senate Foreign Relations Committee, May 25, 2022, https://www.foreign.senate.gov/hearings/the-jcpoa-negotiations-and-united-states-policy-on-iran-moving-forward05252201

25. Andrew Desiderio, “Congress Fires Its First Warning Shot on Biden’s Iran Deal,” Politico, May 5, 2022, https://www.politico.com/news/2022/05/05/congress-warning-biden-iran-deal-00030448.

26. Farnaz Fassihi and Ronen Bergman, "Israel Tells U.S. It Killed Iranian Officer, Official Says," The New York Times, May 25, 2022.

27. Nadereh Chamlou, “Can President Ebrahim Raisi Turn Iran’s Economic Titanic Around?” IranSource, February 1, 2022, https://www.atlanticcouncil.org/blogs/iransource/can-president-ebrahim-raisi-turn-irans-economic-titanic-around/.

28. Javad Heiran-Nia, “How Iran’s Interpretation of the World Order Affects Its Foreign Policy,” IranSource, May 11, 2022, https://www.atlanticcouncil.org/blogs/iransource/how-irans-interpretation-of-the-world-order-affects-its-foreign-policy/.

29. “Iran Deal Not a ‘Ceiling’: Zarif,” Islamic Republic News Agency, July 14, 2015, https://en.irna.ir/news/81683560/Iran-deal-not-a-ceiling-Zarif.

30. Barbara Slavin, “The Potential Side Benefits of a Revived JCPOA for Middle East Stability,” IranSource, April 5, 2022, https://www.atlanticcouncil.org/blogs/iransource/the-potential-side-benefits-of-a-revived-jcpoa-for-middle-east-stability/.

31. Barbara Slavin, Bitter Friends, Bosom Enemies: Iran, the U.S. and the Twisted Path to Confrontation (New York: St. Martin’s Press, 2007), p. 223.


Barbara Slavin directs the Future of Iran Initiative at the Atlantic Council.

There seems little U.S. urgency to restore compliance with the 2015 nuclear deal despite the fact that Iran is advancing its nuclear capabilities.

Nuclear Overtones in the Russia-Ukraine War


June 2022
By Manpreet Sethi

Nuclear weapons today occupy center stage in an unexpected theater in Europe. The conflict between Russia and Ukraine has drawn attention to these weapons of mass destruction and the alarming possibility of their use in a manner that had mostly been forgotten. When the Cold War ended more than three decades ago, it was not anticipated that the threat of nuclear weapons use would make such a comeback. South Asia and the Korean peninsula were considered the more likely nuclear flashpoints, not Europe.

The remains of a school in Kharkiv, Ukraine, that was destroyed during fighting between Ukrainian and Russian forces on May 24. (Photo by John Moore/Getty Images)More than two months have elapsed since the start of the conflict. Although the actual fighting is taking place between nuclear-armed Russia and non-nuclear Ukraine, the threatening shadow of the nuclear weapons possessed by the United States and NATO is palpable. Since the Cuban missile crisis in 1962, this is the first real engagement between the United States and Russia where they are indirectly yet directly involved. Millions of lives have been disrupted, and several thousand people have died. This is an irreparable and inconsolable human loss.

There also will be long-lasting implications for states, whether possessing nuclear weapons or not, as to how these capabilities are perceived in the future. This experience has created profound nuclear challenges, but also offers some opportunities for reducing nuclear risks.

Nuclear Challenges

One immediate concern is the manner in which nuclear Russia has used force against non-nuclear Ukraine. A popular view emerging internationally is that Russia exploited its nuclear status to invade its neighbor and that its nuclear weapons, in effect, gave it the immunity to wage a war against a non-nuclear-weapon state.

This perception raises the stock value of nuclear weapons and could lead a non-nuclear-weapon state to reexamine its security requirements, especially when it experiences hostile relations with countries that possess nuclear weapons. It will have implications for how a non-nuclear-weapon state evaluates the worth of negative security assurances provided to it by the nuclear-weapon states. Despite such assurances being made to Ukraine in the 1994 Budapest Memorandum by the United States, the United Kingdom, and Russia, for instance, Russia has used the threat of the potential use of nuclear weapons as a way to deter Ukraine from soliciting and receiving outside support. This episode raises the possibility of similar instances of nuclear coercion against additional non-nuclear-weapon states, which, in turn, could lead these states to acquire their own nuclear weapons to fend off nuclear-armed adversaries.

A second challenge arises from the heightened risks of nuclear use when two nuclear-armed states engage in conventional war with each other. During the Cold War, it was generally assumed that, in case of a direct conflict between two countries with nuclear weapons, presumably the United States and the Soviet Union, the fighting would turn quickly into a nuclear exchange. As a result, the planning process in both countries shifted to the realm of nuclear war-fighting. The size and structure of the U.S. and Russian nuclear forces, targeting strategies, and civil defense measures were constructed with the inevitability of a nuclear war in mind. Little attention was paid to containing a war at the conventional level.

Fortunately, incidents of direct military engagement between nuclear-armed states were few. The only direct conflict during the Cold War between the Soviet Union and the United States took place in 1962 over Cuba, and a direct military clash between the Soviet Union and China took place over the Ussuri River in 1969. All other confrontations between nuclear superpowers were fought through their proxies in third countries that were themselves non-nuclear. This record, not surprisingly, reinforced the thinking among scholars and political leaders that nuclear deterrence averts war between nuclear-armed nations. Tomes have been written about how the presence of nuclear weapons induces nations to be prudent and to establish “tools for crisis management to reduce the prospect of the outbreak of unintended warfare, either nuclear or conventional.”1 Such a belief is also responsible for the positive spin around nuclear weapons as keepers of stability and peace between nuclear-armed nations and hence against the case for nuclear disarmament.

Interest and concern about the possibility of conventional wars that could be fought between nuclear-armed states picked up after India and Pakistan tested nuclear weapons in 1998. Given their historically troubled relationship and geographical contiguity, the possibility of conventional war within this nuclear shadow presented a significant new challenge. The West rushed to provide Islamabad and New Delhi with “nuclear learning” from its experience. Over the years, India and Pakistan have found ways of navigating the narrow space of conventional military operations against the backdrop of their nuclear weapons. Nevertheless, the risk of escalation can never be obviated.

The experience of Southern Asia, a term used to define the nuclear dynamics among China, India and Pakistan, underscores that when caught in a direct confrontation, nuclear-armed states, irrespective of their doctrine or apparent nuclear bluster, are cognizant of the consequences of intentional use and the risks of inadvertent use of nuclear weapons. Therefore, leaders take conscious measures to avoid risks and are forced to do two things: show high tolerance for their adversary’s military and political actions, and moderate the use of their own military capability to remain below the other side’s perceived nuclear threshold. A former Indian defense minister made this observation after the nuclearization of South Asia: “Nuclear weapons did not make war obsolete; they simply imposed another dimension on the way warfare was conducted…. [C]onventional war remained feasible, though with definite limitations, if escalation across the nuclear threshold was to be avoided.”2 As history has shown, nuclear-armed states of all hues are compelled to impose constraints on the use of their conventional military forces to avert raising the level of the crisis.

When India fought the war with Pakistan in 1999 over the Kargil district that had been clandestinely occupied by Pakistani army troops disguised as mujahideen, the Indian Air Force was instructed to operate without crossing the Line of Control, which divides the Indian- and Pakistani-controlled parts of Kashmir. Air operations to evict the intruders were conducted in a constrained space in order to avoid any chance of provoking Pakistan into expanding the conflict, thereby risking nuclear escalation. In more recent times, India’s response to continued cross-border attacks from Pakistan have taken the form of short, swift surgical strikes, as in 2016, or carefully calibrated air attacks, as in 2019. These operations have been crafted by India to punish without exploiting the full force of its conventional military capabilities. Pakistan’s retaliatory attacks also appear to have been prudently tailored to keep escalation in check.3

A similar pattern seems to be emerging in the Russian-Ukrainian conflict, where in order to steer clear of the specter of nuclear escalation, both sides are moderating their military actions. The United States and NATO have refrained from undertaking any overtly provocative actions. The Ukrainian demand for help in imposing a no-fly zone has been rejected. The United States cancelled a scheduled test of an intercontinental ballistic missile and refused to raise the alert levels of its nuclear forces despite Russian President Vladimir Putin’s threats and order to put his nuclear forces on somewhat higher alert. The objective of these Western efforts has been to avoid any action that could be misread by Moscow as a provocation.

Meanwhile, Russia has had to tolerate a certain level of arms and ammunition transfers to Ukraine. Even a strategic blow such as the sinking of the Russian flagship Moskva or reported high casualties among Russian troops have been absorbed. Despite the nuclear brinksmanship suggested when Putin threatened consequences “such as you have never seen in your entire history,” concerns about the use of nuclear weapons to redeem losses on the ground appear farfetched. This is true even though the Russian leadership has not hesitated to draw attention repeatedly to nuclear weapons, whether by testing a Sarmat missile on April 20 or reiterating the threat of “unpredictable consequences” if heavy arms were supplied to Ukraine by Western powers. Indeed, keeping the nuclear threat in the news is part of the Kremlin’s nuclear strategy of deterrence.

As it appears now, the war could progress in slow motion indefinitely until both sides can find an off-ramp that allows them to avoid the appearance of defeat, or the war could “break out of the boundaries that have currently kept it contained.”4 More often than not, outright victories and defeats are difficult to ascertain in such conflicts. Nations are forced to tailor their political-military objectives along more and more limited lines as the conflict stretches on. In fact, the success of military campaigns is claimed more frequently in the individual narratives articulated by each side rather than on the ground. Indian-Pakistani military engagements since 1998 illustrate these facts.

The challenge remains that when two nuclear-armed states engage in conflict, they have the capacity to hold the world hostage to nuclear destruction. Executing conventional wars in the shadow of nuclear arsenals may be possible, but it is not devoid of high risks.

Norm-Affirming Opportunities

Incidences of direct military engagement between nuclear-armed adversaries and the manner in which they have been conducted also illuminate another interesting issue pertaining to the perceived military utility of nuclear weapons. Nuclear strategists and practitioners understand well that nuclear deterrence is a game of psychological manipulation. Nuclear bluster and brinkmanship are an important dimension of nuclear deterrence, especially by weaker conventional powers. Like Pakistan or North Korea, Russia appears to have used nuclear saber-rattling to deter its adversary from the large-scale use of conventional forces. Despite all the noise that must accompany strategies of first use of nuclear weapons or those premised on the notion of “escalate to deescalate,” it is never easy to find the appropriate military use for nuclear weapons. The nature of the armament as a weapon of mass destruction and the attendant risk of retaliation after first use make it a blunt instrument, at least from the point of view of war-fighting.

Therefore, in all crises between nuclear-armed states, nuclear weapons have not shown themselves to be useful for achieving any worthwhile political or military objectives through premeditated first use. This is particularly the case when both sides have assured second-strike capabilities, thereby raising the risk of an exchange that would cause unacceptable damage to both sides.

Once this logic is understood, it is possible to envision some opportunities that can be exploited to strengthen the norm of nonuse of nuclear weapons and reinforce the basics of nuclear deterrence. What needs to be underscored is the fact that nuclear weapons are distinct from conventional weapons. The instantaneous release of large amounts of energy in the form of blast and thermal heat, ionizing radiation, and the long-term radioactivity from nuclear fallout are unavoidable with nuclear detonations.5 The empirical data from the destruction wrought on Hiroshima and Nagasaki by, respectively, 15-kiloton and 20-kiloton nuclear warheads are widely available. Today’s warheads are even more powerful and destructive. Although lower yields have been experimented with as one way of reducing the deleterious effects of nuclear explosions, a 2001 report concluded that even a ground burst of a nuclear yield as small as 1 percent of the Hiroshima weapon would “simply blow out a massive crater of radioactive dirt, which rains down on the local region with especially intense and deadly fallout.”6

Given that this is the true nature of the weapon, there hardly can be any credible scenarios where it could be used effectively to achieve an objective. Could any war aim be worth this cost to the adversary and to one’s own self given the retaliation that would likely follow? Over time, Washington and Moscow accumulated large stockpiles of varying yields in the hope of gaining an advantage in nuclear exchanges. Yet, neither country has been seriously inclined to test this hypothesis in real-life situations.

No matter how the war in Ukraine evolves, the nuclear threats by Russian President Vladimir Putin (R), shown with Defense Minister Sergey Shoigu, have revived fears of nuclear conflict and changed how countries think about deterrence and other nuclear-related theories. The two men attended the Victory Day Parade, marking the Soviet Union's defeat of Nazi Germany in World War II, in Red Square on May 9.  (Photo by Contributor/Getty Images)Nations cannot defend themselves by using nuclear weapons. They can only do so by deterring the adversary’s use of a nuclear weapon by the threat of retaliation. In fact, the threat of using these weapons in any scenario other than retaliation, such as against terrorists, conventional offensives, and cyberattacks or space attacks, could only be counterproductive by escalating hostilities. Clearly, these weapons are most effective for only a narrow role.

Embracing this simple reality could make it possible for nations to agree to accept no first use of nuclear weapons as a doctrinal precept. If deterrence is the only function that nuclear weapons can credibly perform, then a no-first-use doctrine does not put nuclear-armed states at a disadvantage. Rather, it brings many benefits. For one, it allows countries to retain their nuclear weapons for the sense of notional security derived from their presence until such time as nuclear-armed states begin to see them as useless. At the same time, the no-first-use policy liberates nations from the need to build and maintain large arsenals with first-strike capabilities, which bring their own risks of safety and security.

Moreover, the policy releases national leaders from having to make the momentous decision to breach the nuclear taboo, which can never be easy because the act will provoke retaliation. It also frees adversaries from the use-it-or-lose-it dilemma, which could trigger nuclear preemption. Thus, a no-first-use policy offers crisis and arms race stability even in the presence of nuclear weapons.7 Because nuclear weapons possessors are unwilling to relinquish their arsenals until conditions are “right,” a no-first-use policy can help create those conditions by constricting possibilities for using the weapon, thus making them useless over time.

Backing Off the Nuclear Precipice

Six decades after the Cuban missile crisis, the Russian-Ukrainian war has brought nations yet again to the nuclear precipice. Talk of World War III is in the air. Of course, the United States and NATO have taken adequate precautions to avoid any move that could propel the world toward nuclear escalation. Some Russian ministers have announced that their country has no reason to use nuclear weapons except to defend against an existential threat. These efforts contribute toward minimizing the chance of intentional nuclear use. Nevertheless, the inadvertent use of the weapons due to miscalculation, misperception, or accident should not be overlooked. Given that tensions are high and information warfare well in progress, one cannot dismiss the presence of a thick fog of war that could make countries stumble into nuclear use.

As a result, it is imperative that this moment be seized by all those who believe that living with nuclear weapons is too risky to drive home the dangers of nuclear weapons and the alarming challenges that they pose for states with nuclear weapons and those without. The very existence of these armaments adds to the risk of escalation to the nuclear level in every war. Additionally, these weapons trigger anxieties about nuclear blackmail and coercion among nonpossessor states.

The war raging in Ukraine offers an important opportunity to sensitize nations and their populations to nuclear risks. All could do with a stiff dose of nuclear learning. The fate of future generations will rest on the world’s behavior today.

 

ENDNOTES

1. Richard Falk and David Krieger, The Path to Zero: Dialogues on Nuclear Dangers (Boulder, CO: Paradigm Publishers, 2012), p. 26.

2. Raksha Mantri, “The Challenges of Limited War: Parameters and Options” (address, New Delhi, January 5, 2000), http://www.idsa-india.org/defmin5-2000.html.

3. See Nuclear Crisis Group, “South Asia: Post Crisis Brief,” June 2019, https://www.globalzero.org/wp-content/uploads/2019/06/South-Asia-Post-Crisis-Brief.pdf.

4. Lawrence Freedman, “Escalators and Quagmires,” Comment Is Freed, April 29, 2022, https://samf.substack.com/p/escalators-and-quagmires.

5. Some of these arguments draw on an earlier paper by the author. See Manpreet Sethi, “Back to Basics: Pledging Nuclear Restraints,” in Off Ramps From Confrontation in Southern Asia, ed. Michael Krepon, Travel Wheeler, and Liv Dowling (Washington: Stimson Center, 2017).

6. Robert W. Nelson, “Low-Yield Earth-Penetrating Nuclear Weapons,” Federation of American Scientists, n.d., https://programs.fas.org/ssp/nukes/new_nuclear_weapons/loyieldearthpenwpnrpt.html.

7. With their declared no-first-use doctrines, China and India have demonstrated the benefits of this despite their long military stand-off since April 2020. See Ramesh Thakur and Manpreet Sethi, “India-China Border Dispute: The Curious Incident of a Nuclear Dog That Didn’t Bark,” Bulletin of the Atomic Scientists, September 7, 2020, https://thebulletin.org/2020/09/india-china-border-dispute-the-curious-incident-of-a-nuclear-dog-that-didnt-bark/.


Manpreet Sethi is a distinguished fellow at the Centre for Air Power Studies in New Delhi.

The war raging in Ukraine offers an important opportunity to sensitize nations and their populations to nuclear risk. The fate of future generations will rest on the world's behavior today.

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