Fill the legal gap—the latest endorsement


Renewing the call for prohibiting and eliminating nuclear weapons

By Tim Caughley

The build-up to next month’s five-yearly review of the nuclear non-proliferation treaty (NPT) has already produced a number of headlines and statements of intent. From nations that do not possess nuclear weapons there has been a call to NPT state parties to ‘fill the legal gap for the prohibition and elimination of nuclear weapons’ (Austrian Pledge, 9 December 2014). The initiator of the call, Austria, has noted that while other categories of weapons of mass destruction (WMD) are banned—chemical and biological weapons—nuclear arms are not. For their part, the five state parties to the treaty that still maintain nuclear arsenals (the NPT5) have said that they merely anticipate a ‘consensual, balanced outcome which would do much to enhance [their] continuing efforts to strengthen the NPT’ (NPT5 Joint Statement, 6 February 2015).

More recently, an influential third party has added its views on challenges confronting the NPT regime. Reflecting on commitments in 2009 by the Security Council and the United States and Russian presidents, the head of the International Committee of the Red Cross (ICRC) expressed grave concern that those undertakings were at risk (speech, 18 February 2015). The ICRC president, Peter Maurer, concluded that today’s complex security environment highlights both the challenges and necessity of concerted action to protect humanity from the humanitarian consequences of nuclear weapons:

Nuclear weapons’, Maurer continued, ‘are often presented as promoting security, particularly during times of international instability. But weapons that risk catastrophic and irreversible humanitarian consequences cannot seriously be viewed as protecting civilians or humanity as a whole’.

The ICRC president did not refer directly to the Austrian Pledge.  Maurer, however, also observed that nuclear arms ‘are the one weapon of mass destruction on which we are still confronted with a legal gap’. The International Committee implicitly acknowledged efforts made by the NPT5 to advance nuclear disarmament. But in light of the potential humanitarian consequences of nuclear weapons, the ICRC described progress on that front as ‘insufficient’ (a broadly shared view founded in part on evidence of the risks and scale of those consequences tabled at the Vienna conference reviewed earlier on this site).

The question of sufficiency or insufficiency of progress on all three ‘pillars’ of the NPT will be to the fore during the review conference, and is likely to be at its most contested under pillar one on nuclear disarmament. It was agreed without dissent at the previous review conference in 2010 that the 2015 review would ‘take stock [of the 2010 action plan] and consider the next steps for the full implementation of article VI of the NPT’. Part of the stock-take is an assessment of whether the NPT5 have been ‘rapidly moving towards an overall reduction in the global stockpile of all types of nuclear weapons’, diminishing the role and significance of nuclear weapons in all military and security doctrines, reducing the risk of accidental use of nuclear weapons, and discussing policies that could prevent the use of nuclear weapons and contribute to their non-proliferation and disarmament.

In the face of widespread disappointment with the rate of progress by nuclear weapon states in implementing these actions, the NPT5 insist that the action plan is simply ‘a roadmap for long term action’ (emphasis added). This would seem to be at odds with how many others interpret the action plan with its emphasis on ‘action’, as well as its usage of terms such as ‘immediate’, ‘urgent’ and ‘promptly’ which appear no less than 8 times in the 22 actions on nuclear disarmament—actions which are surely central to the NPT5’s recently avowed intention to ‘strengthen’ the NPT.

Increasingly, it is the absence of timelines in the NPT regime that frustrates its implementation and threatens its integrity. It is salutary that in the eyes of the ICRC there is ‘no evidence of negotiations for “rapid reductions” of nuclear weapons and even fewer signs of momentum towards their “total elimination”’. In this regard, the Austrian Pledge’s clarion call to parties to the NPT to identify and pursue effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons is a resounding one.