Discussions about the feasibility and necessity of a legal ban on nuclear weapons took centre stage at the first session of the United Nation’s Open-Ended Working Group (OEWG) on taking forward multilateral nuclear disarmament. The states legally recognized under the Non-Proliferation Treaty (NPT) as nuclear-weapon states (NWS) were nowhere to be seen, leaving their allies to argue the case for pragmatic caution; India, Pakistan, Israel and North Korea were also absent. Although this was only the first meeting, and there are still two more sessions of the OEWG this year, the OEWG has developed a strong momentum behind it, and support is growing among many states and civil society groups on the adoption of legal ban on nuclear weapons. This is in no small way a direct result of the frustration with the failure to agree concrete progress at last year’s NPT Review Conference (RevCon), and associated disarmament fora.
Inspired by the humanitarian concerns about the catastrophic consequences of the use, deliberate or accidental, of nuclear weapons, the majority of non-nuclear-weapon states (NNWS) have decided to take the initiative. In 2015, 149 states supported a United Nations General Assembly’s resolution endorsing the Humanitarian Pledge initiated by Austria in 2014 to fill the ‘legal gap’ in the framework for nuclear disarmament. Those pushing for a legal ban claim this is the only possible course of action given the failure of the NWS to fulfil their disarmament obligations under the NPT. They regard the view that security considerations have to be carefully balanced with humanitarian imperatives as an excuse to uphold the nuclear status quo, and the reason for the deadlock in the Conference of Disarmament (CD).
The experience at the OEWG suggests that support for the ‘middle ground’ to reconcile security and humanitarian concerns appears weak for the time being. Many lament the increasing polarisation about the right time for a legal ban and the adequate institutional framework for nuclear disarmament.
In 2013, the first OEWG on multilateral nuclear disarmament, meeting without the nuclear weapon states present, concluded that a ban would be just one of the ‘elements necessary for maintaining a world without nuclear weapons once achieved’. This implied the legal ban would be an essential step to be taken later on in the long and tortuous quest of a nuclear-weapons-free world. Today, proponents of the legal ban see only benefits in a speedy process, with or without the participation of the nuclear weapon states. They believe this would apply political pressure on every state to take measures to reduce its reliance on nuclear weapons and force disarmament, whether a signatory or not.
Ban advocates recognise that such a treaty is simply a step towards disarmament, and that effective and verified disarmament would require the agreement of nuclear armed states to a negotiated convention. This implies that a legal ban might just be reconciled with the step-by-step approach to nuclear disarmament enshrined in Action 5 of the outcome document from the 2010 NPT RevCon; ban sceptics see step-by-step as the only realistic path to disarmament.
The humanitarian approach has not only given oxygen to a legal ban treaty movement. It has also shifted focus from traditional fora for negotiations that appear stymied, particularly the CD, to new ones. It has spawned a series of intergovernmental conferences on the humanitarian impact of nuclear weapons (Oslo 2013, Nayarit 2014, Vienna 2014) as well as the UN-mandated OEWGs. The Humanitarian Initiative fora are not ruled by formal negotiation or consensus-based decision making, so there is no veto power. Unwilling to lend these meetings legitimacy, the nuclear weapon states normally prefer to abstain from taking part in these gatherings (the exception being the US and UK attendance in Vienna in December 2014). The UK government, for example, ‘believes that productive results can only be ensured through a consensus-based approach that takes into account the wider global security environment’. It also considers that ‘the UN Disarmament machinery and the Non-Proliferation Treaty provide the right framework for working towards a world without nuclear weapons’. In the same line, the US claims that the agenda and the rules for the OEWG ‘will not result in constructive dialogue on nuclear weapons or conditions under which nuclear disarmament can best be achieved’.
Cautious about feeding the process, non-engagement by the nuclear weapon states could become the perfect recipe for polarisation. However, the NWS should understand that the OEWG has no decision-making power, so pointing at its rules of procedure as a reason not to participate makes for a weak argument. Additionally, by not participating in the OEWG or in the wider humanitarian initiative the NWS deprive themselves of opportunities to have the security dimension of nuclear weapons taken into account. It should be stressed that the OEWG comprised two panels: one devoted to ‘substantively address concrete effective legal measures, legal provisions and norms’, the other to ‘recommendations on other measures that could contribute to taking forward multilateral nuclear disarmament negotiations’, including transparency and risk reduction measures. The NWS missed an opportunity to explain why a premature ban could derail disarmament or why it would not be compatible with the NPT process, but also to explain which other credible measures would be required in the absence of a ban to advance the step-by-step process.
Fortunately, certain NNWS allied to nuclear powers, like Germany, the Netherlands, Australia and Japan, understand that the only way to avoid polarisation is to have a conversation. In keeping with their usual line, at the OEWG they advocated for the so-called ‘building blocks’ paradigm, which bears in mind security concerns. In the words of the head of the Dutch delegation:
Another reason we think it is important to actively participate in the work of this Group is that in the last couple of years the debate on nuclear disarmament has polarized …. We therefore believe we need to talk. We need to start a serious dialogue on a realistic and common way forward for nuclear disarmament, including on multilateral nuclear disarmament negotiations.
A legal ban might appear to be an understandable move toward disarmament after years of paralysis, but what about the day after? If a legal ban is to be more than a one-off symbolic success, serious work is needed to explain how it dovetails with an incremental approach to disarmament. After any legal ban is achieved all sides will have to go back to the muddy middle ground in search of progress, and address what strategic conditions are for concrete progress. To ignore this and engage in a question of ought is to address only part of the question.