Concrete legal measures and norms to attain and maintain a world without nuclear weapons (2)

Comments, OEWG

This blog contains comments made by Magnus Løvold during the National Red Cross and Red Crescent Societies workshop on implementation of the 2013 Council of Delegates Plan of Action, in Geneva, 30 April – 1 May, ahead of the May sessions of the open-ended working group on taking forward multilateral nuclear disarmament negotiations

By Magnus Løvold

The question of how to implement some or all of the elements identified in the UNIDIR–ILPI study, ‘A prohibition on nuclear weapons: A guide to the issues’, has been intensely debated over the last years. In fact, in diplomatic disarmament forums, there is a tendency to place more emphasis on questions of process than on questions of legal content, and this is something that we, with our study, have attempted to rectify.

When thinking about process and pathways for how to move nuclear disarmament forward, it is useful first to acknowledge that states have different objectives and political priorities in this area. Thus, although all states claim to support the goal of a world without nuclear weapons as an ultimate—for some perhaps utopian—end-state, views differ both on the values states attach to nuclear weapons and on how to achieve that world where there are no nuclear weapons. Most non-nuclear armed states would be inclined to say that nuclear weapons have no benefits, no upside; that they are a negative thing full stop, and that the sooner we get rid of these weapons, the better. The nine nuclear-armed states and their allies usually present a different view: While they agree with the neutral and non-aligned states that the consequences of using nuclear weapons are horrific, they typically assert that nuclear weapons provide the benefits of providing international stability and national or collective security.

Many states and observers have attempted to frame the debate about pathways for nuclear disarmament. I will present my own understanding of this debate, framed in terms of four key questions states are currently discussing in the open-ended working group (OEWG) on taking forward multilateral nuclear disarmament negotiations in Geneva.

The first question concerns the type of measure or measures that are needed to get us closer to a world without nuclear weapons. The first choice states have to make here is whether they are going to develop legal or non-legal measures. While all states would probably admit that the right way ahead consists of a combination of the two, they vary greatly in emphasis: The non-nuclear-armed states have traditionally highlighted the need for new legal instruments, while the nuclear-armed states and their allies normally focuses on non-legal, or what they call “practical” measures. Now it should be noted that most non-nuclear armed states would support—and have indeed supported on several occasions—the implementation of so-called practical measures (in NPT outcome documents, for example), and most nuclear-armed states and most of their allies supports the development of one or more new legal instruments—negotiation of a Fissile Material (Cut-Off) Treaty being a case in point.

At the OEWG, the working paper submitted by Finland and seventeen nuclear-umbrella states under the heading “A progressive approach to a world free of nuclear weapons” provides a nice summary of the non-legal or practical measures currently favored by the nuclear-umbrella states. As—in my view, rightly—pointed out in a working paper drafted by Costa Rica and Malaysia, however, one problem with most of these measures relies on the active engagement of one or more nuclear-armed states. Yet none of the nuclear-armed states appear willing to implement most of the suggested measures.

The second key question states are wrestling with at the OEWG is what kind of legal instrument that should be developed, and this question is also at the core of the OEWG’s mandate: “To substantively address effective legal measures”.

As already mentioned, the so-called nuclear umbrella states favor negotiations on an FMCT or an FMT; negotiations on such a treaty has been proposed in the context of the Conference on Disarmament over many years, but have so far been rejected. Most states would also support the development of new bilateral agreements between the United States and the Russian Federation, building on the series of stockpile reduction agreements already adopted by these states, the New START Treaty of 2010 being the latest one. However, in light of the present climate of US–Russian relations, such negotiations seems unlikely to happen in the foreseeable future.

By contrast, the preference of states without nuclear weapons would be to negotiate some kind of multilateral legal instrument that would cover some or all of the prohibitions and obligations referred to in the UNIDIR–ILPI study. The New Agenda Coalition (NAC)—a cross regional group of states—have in several working papers submitted to the meetings of the Nuclear Non-Proliferation Treaty (NPT) narrowed the question down to two alternatives: (1) A comprehensive prohibition, either in the form of a comprehensive nuclear weapons convention, or a prohibition treaty without provisions for stockpile destruction and disarmament/dismantlement verification (also called a stand-alone ban treaty); (2) a framework convention, either with an “empty” head agreement, much like the Convention on Certain Conventional Weapons (CCW), or with a “fuller” head agreement, i.e. with one or more concrete legal obligations, for example a prohibition on use (similar to the Framework Convention on Tobacco Control (FCTC)). The main point about a framework convention is in any case to create a forum for the subsequent negotiation of the necessary legal obligations in one or more protocols.

In the first segment of the OEWG in February, Brazil presented a “hybrid” of these two alternatives, i.e. a prohibition treaty without provisions for stockpile destruction and disarmament/dismantlement verification, but with the possibility of adding protocols on these issues after the prohibitions have been negotiated. This could of course also be seen as a framework agreement with a very “full” head agreement.

A third question concerns timing and tempo: When should the different legal provisions be negotiated and how quickly should one proceed from the beginning of negotiations until the instrument is concluded?  And how much does states need to agree upon before starting negotiations? For example, is it necessary to agree on the exact scope of the treaty, and therefore settle the question of whether to include stockpile destruction and verification instruments? And is it necessary to agree on the elements of a prohibition before the start of negotiations, or should the selection of elements rather be a part of a negotiation process? These are all questions to which there is no easy answer, but that states are expected to wrestle with at the second OEWG segment and beyond.

A fourth question related to the process ahead concerns the preferred forum or arena for negotiations, which includes considerations of participation, funding and decision-making. After the first conference on the humanitarian impact of nuclear weapons in Oslo, Norway, in 2013, many were hoping for a quick “ad hoc” negotiating process similar to the processes leading to the Anti-Personnel Mine Ban Convention and the Convention on Cluster Munitions negotiations, i.e. outside existing nuclear disarmament arenas. Although follow-up conferences on the humanitarian impact of nuclear weapons in Vienna, Austria and Nayarit, Mexico were also held outside existing forums, neither of these conferences saw the start of negotiations, and I think it is fair to say that, until a state or a group of states decides to convene a fourth conference, the prospects for negotiations to take place outside existing forums are relatively slim.

Then what are we left with? There is of course the Conference on Disarmament (CD) in Geneva, which is mandated to negotiate disarmament treaties. I would argue, however, that both because of its limited membership—only 65 states are members of the CD—and because it has been deadlocked for nearly two decades, it is unlikely that we will see negotiations in this arena in the near future. Another arena where states meet to discuss nuclear disarmament is the NPT review cycle. While it is possible—in theory—for states to negotiate amendments or additional protocols to the NPT, such negotiations have to my knowledge never been proposed, at least not since the 1980s, and are therefore extremely unlikely to take place in the near future, especially in light of the last NPT Review Conference’s failure, in 2015, to agree on a set of so-called practical measures for nuclear disarmament and non-proliferation.

Then finally there’s the UN General Assembly, which, absent the willingness of states to go outside existing frameworks, and the lack of progress in the CD and the NPT, currently seems like the most likely arena for negotiations on a nuclear weapons prohibition. Negotiations in the context of the General Assembly has several potential benefits: all states are members and it can therefore not be accused of being non-inclusive; most states have missions to the UN and will therefore, if the negotiating conference is held in New York or Geneva, have the opportunity to participate; funding required for the negotiating conferences can be shared amongst the states according to assessed contributions through the UN budget; decisions can be made by simple majority or two-thirds majority, according to the rules of procedure of the UN General Assembly.

This entry was posted in Comments, OEWG. Last updated May 11, 2016.

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