Open-ended fault lines

Comments, OEWG

Many proposals have been brought to the table at the open-ended working group on nuclear disarmament in Geneva. What are the main fault lines for discussions?

By Magnus Løvold

If success were to be measured by rate of document production, the open-ended working group (OEWG) on nuclear disarmament could already be considered a great triumph. As the second substantial segment of the OEWG gets going in Geneva, states and civil society have set forth an impressive 35 working papers—more than three times the number of working papers written for the previous OEWG in 2013. In addition, the working group’s chair, Ambassador Thani of Thailand, has drafted a 15-page long “synthesis” of the discussions held and proposals made so far. In purely quantitative terms, therefore, the 2016 sessions of the OEWG on nuclear disarmament have been a highly effective undertaking. The big question now is whether all this diplomatic toil and trouble will lead to a set of clear recommendations for the Thai chair to bring to the First Committee of the United Nations General Assembly later this year.

This post aims to identify the main fault lines in the discussions of the OEWG on nuclear disarmament by grouping the working papers that have been submitted so far into four main clusters. The clusters contain a number of arguments and counter-arguments, concepts and proposals that are likely to frame the debate during the second part of the OEWG in May.

Is there a legal gap?

A first cluster of working papers concerns a question that have recently featured in the columns of the magazine Arms Control Today: Is there a gap in the international legal framework regulating nuclear weapons? Austria, inspired by discussions during the 2014 Vienna Conference on the Humanitarian Impact of Nuclear Weapons and their own Humanitarian Pledge, posited the existence and analysed the implications of a legal gap in a working paper submitted during the first OEWG segment in February. Since then, the use of this concept has been challenged by the Netherlands and Canada, who in two separate working papers argue that one cannot infer the existence of a legal gap or legal lacuna from the mere absence of a comprehensive prohibition on nuclear weapons or from the ambiguity of existing legal disarmament obligations. The linkage made in a working paper submitted by a group of Pacific Island States (Fiji, Nauru, Palau, Samoa and Tuvalu) as well as in a paper produced by the NGOs Article 36 and the Women’s International League for Peace and Freedom (WILPF) between the concept of a legal gap and the need for a new treaty banning nuclear weapons in all likelihood explains why the Netherlands and Canada resist describing the existing legal framework regulating nuclear weapons in terms of a gap. Indeed, Canada’s working paper explicitly criticizes the ban treaty proposal, arguing that such a treaty would undermine the Nuclear Non-Proliferation Treaty (NPT). The question of a legal gap and the related question of a new prohibition treaty is likely to take centre stage during discussions in May.

A treaty banning what?

A second cluster of working papers submitted to the OEWG concerns the scope and parameters of a nuclear weapons prohibition as well as why, how and when such a prohibition should be put in place. An intriguing new working paper submitted by a group of nine members of regional nuclear-weapon-free zone treaties in Africa, Southeast Asia and Latin America and the Caribbean (Argentina, Brazil, Costa Rica, Ecuador, Guatemala, Indonesia, Malaysia, Mexico and Zambia) proposes that multilateral negotiations on a treaty banning nuclear weapons should be initiated by 2017. The following prohibitions should be considered in negotiations, they suggest: Possession, use and threat of use, acquisition, stockpiling, development, testing, production, transfer, transit, stationing, and deployment, as well as assistance with and encouragement or inducement to the above-mentioned prohibited acts. A working paper submitted by Mexico provides a slightly more focused display of the types of activities that could be prohibited under a new legal instrument, and excludes testing, transit, production, threat of use and—interestingly—a prohibition on nuclear weapons use of in its list of suggested prohibitions. Mexico’s outline corresponds—albeit not perfectly—with the prohibitions proposed in a second working paper put forward by Article 36 and WILPF as well as with the elements proposed in the already mentioned working paper submitted by the Pacific Islands States. The Indonesian Institute of International Studies (ISS) offers a slightly different approach to the question of what a nuclear weapons prohibition should contain: Instead of listing the positive legal elements, ISS surveys existing policies and practices that, in their view, should be explicitly prohibited. Significantly, none of these working paper stipulate that a nuclear weapons prohibition should include specific legal provisions for stockpile destruction.

A working paper presented by Costa Rica and Malaysia during the first OEWG segment in February dwells less upon the scope and focuses instead on the normative rationale behind a prohibition. In Costa Rica’s and Malaysia’s view, the norm against nuclear weapons and for nuclear disarmament can be strengthened and made more effective by developing what they call an “absolute prohibition” on nuclear weapons. Such a treaty would comprehensively prohibit nuclear weapons for all its States Parties, that is to say, irrespective of whether the State Party in question possesses nuclear weapons or not. A similar working paper submitted by the Community of Latin American and Caribbean States (CELAC) also highlights the normative logic behind a treaty banning nuclear weapons, but puts additional emphasis on the modalities of the development of such an instrument: In CELAC’s view, negotiations should be open to all and—reflecting Costa Rica’s and Malaysia’s concept of an absolute prohibition—the treaty’s entry into force provisions should not be contingent upon ratification by the nuclear-armed states. The argument about procedural inclusiveness is further elaborated in a working paper on “good faith negotiations” drafted by the inter-church organisation the World Council of Churches (WCC), while the scope for independent action by the non-nuclear armed states is reflected in and reinforced by a working paper by the NGO provocateur Wildfire.

As a consequence of these arguments, an additional question that States are likely to wrestle with during the second segment of the OEWG concerns the relationship between the process of prohibiting nuclear weapons and the process of eliminating these weapons. Most arguments about the normative impact of nuclear weapons and the role of non-nuclear armed states invoke this conceptual separation, and CELAC’s working paper makes it explicit. A much-discussed Brazilian working paper drafted for for the first OEWG segment in February frames this question in terms of the distinction between interim and end-state legal measures—interim measures being necessary for the achievement of a world without nuclear weapons, while end-state measures being necessary for the maintenance of such a world. In contrast, working papers submitted by Iran and Cuba obfuscates this distinction by repeating their long-standing call for a comprehensive convention that will comprehensively prohibit nuclear weapons and provide for their destruction. In this respect, the emphasis on the didactic and inspirational purposes of the model nuclear weapons convention in a second working paper by Costa Rica and Malaysia and the observation that a comprehensive nuclear weapons convention is “in all practical terms blocked by nuclear-armed States” made in a third paper by the same duo is noteworthy.

Impracticable practice?

A third cluster of working papers focuses on the effectiveness and feasibility of other measures for nuclear disarmament. Most prominently—and comprehensively—a working paper submitted by Finland and seventeen nuclear umbrella states lists sixteen long-standing legal and non-legal objectives related to transparency and reporting, risk reduction, reduction of nuclear warheads, reduction of reliance on nuclear weapons, nuclear testing, fissile material, disarmament and non-proliferation education, disarmament verification, security assurances, safeguards, non-proliferation of ballistic missiles, nuclear terrorism and nuclear security. Japan provides a prioritized elaboration of this policy smorgasbord in a working paper on transparency, reporting, the CTBT and the FMCT, and in a second paper on challenges related to the reduction of nuclear warheads, while the so-called De-alerting Group (Chile, Malaysia, Nigeria, New Zealand, Sweden and Switzerland) proposes a significantly more thoroughgoing approach to risk reduction in their working paper on how to remove nuclear weapons from high alert levels. The Iraqi delegation has also submitted a working paper on risk reduction, but with a more general focus than the one submitted by the De-alerting Group. Some of these issues, such as disarmament education and the entry into force of the CTBT, are also further elaborated in working papers by the James Martin Center for Non-proliferation Studies at the Monterey Institute of International Studies and Japan and Kazakhstan, respectively.

Finland and the seventeen nuclear umbrella states insist that their list of proposed measures are “concrete and practical”. This view has however been directly challenged by Costa Rica and Malaysia, who their a third working paper point out that the implementation of nearly all these measures rely on the participation of one or more nuclear-armed states and are therefore currently unworkable. In light of this, the question of how to distinguish practical from impracticable measures is likely to become a central one in the continuation of the OEWG. Wildfire—another prolific writer of working papers for this OEWG—has also contributed to this debate by offering an alternative list of practical suggestions for what nuclear umbrella states can do to accelerate nuclear disarmament absent the participation of their nuclear-armed allies. Similarly, the Brazilian NGO Grupo de Práticas em Direitos Humanos e Direito Internacional has produced a list of measures related to transparency, risk reduction and awareness-raising that a broader range of non-nuclear-armed states can carry out without the nuclear-armed states.

One or two discursive dimensions?

A final possible fault line for discussions at the second segment of the OEWG on nuclear disarmament in is likely to be the distinction, presented as a “basic vision” by Finland the seventeen nuclear umbrella states and as “two basic understandings” in Japan’s working paper on effective measures, between a “humanitarian dimension” and a “security dimension” of the nuclear disarmament debate. This view stands in stark contrast to the content of a second Austrian working paper, which seeks to merge these two discursive dimensions by challenging the logic of nuclear deterrence from a humanitarian perspective. While this meta-discussion might have academic interest and will no doubt surface during the second segment of the OEWG, the elusiveness of concepts such as “security” and “humanitarian” makes it difficult to predict where this discussion will go, and how important it will be for the remainder of the OEWG.

As the second segment of the OEWG kicks off in Geneva, there is clearly no shortage of working papers, proposals, approaches, elements, ideas, concepts, distinctions, dimensions and perspectives. Apart from finding the time and energy to read the working papers that has been produced so far, the main challenge for states and other observers will be to focus the debate and narrow the issues down to a set of clear, actionable recommendations.