By Alyn Ware
Alyn Ware, Global Coordinator of Parliamentarians for Nuclear Nonproliferation and Disarmament (PNND), examines how to use the ban treaty to impact on the policies and practices of the nuclear-armed States and their nuclear allies.
NEW YORK (IDN) - When the gavel came down at the United Nations on July 7 to confirm the adoption of the Treaty on the Prohibition of Nuclear Weapons, a cheer arose amongst the negotiating countries and civil society observers. 122 countries had voted in favour of the treaty, demonstrating a clear and unequivocal acceptance of the majority of UN members never to use, threaten to use, produce, possess, acquire, transfer, test or deploy nuclear weapons.
Will this be the game-changer that will finally lead to achievement of that elusive goal of global nuclear disarmament – a goal agreed by the UN unanimously in its very first resolution on January 24, 1946?
Will the ban treaty create a global prohibition on nuclear weapons, creating a legal obligation on all States to eliminate their nuclear arsenals?
Will the nuclear-armed States and their allies be forced by the political weight of this global majority to join the ban treaty, abandon nuclear deterrence and eliminate their nuclear weapons?
Or, if none of the above are true, and the nuclear-armed and reliant States remain outside the treaty, are there other ways the ban treaty can be used to have an impact on them?
Let’s consider these questions objectively.
Firstly, will the ban treaty apply to those States that remain outside the treaty? The short answer is no. Treaties only apply to States who join them. This treaty does not create a global law prohibiting nuclear weapons. It creates legal obligations only on those who sign the treaty.
On the other hand, the treaty also re-affirms currently existing law that is universal and does apply to the nuclear-armed and reliant states.
This includes the laws of warfare that the International Court of Justice had concluded would render the threat or use of nuclear weapons to be generally illegal. The treaty also re-affirms the universal obligation to achieve the comprehensive elimination of nuclear weapons. The treaty can’t force the nuclear-armed and allied states to implement this already existing law, but it can provide a tool to remind them and the public about it.
Secondly, will the political power of the treaty, supported by a majority of UN states, force the nuclear-armed and allied States to join?
Let’s consider how big and influential this majority is. The 122 countries comprise 63% of the member countries of the UN. This is a majority, but not an overwhelming one. In addition, many of these countries are very small. The territorial size of the countries supporting the treaty comprises only 37% of the size of all UN countries, and only about 39% of the world’s population. On the other hand, the territories and populations of those not supporting the treaty are approximately 63% and 61% respectively.
We must also consider that the treaty bans actions in which none of the States parties are engaged, while none of the States that do engage in these actions, including the five Permanent members (P5) of the Security Council, have indicated that they would give up such activities and join the treaty. Indeed, many have made categorical statements that they will not join. As such, the treaty does not change the status quo and does not appear to be very influential at changing any country’s behaviour.
Some argue that the ban treaty gives non-nuclear States the moral upper hand, and that this will move the States outside the treaty to join. However, if moral persuasion by a majority of countries were sufficient to move others, then India, Pakistan and Israel would have all joined the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) by now, and North Korea would never have left. The NPT, with a much stronger and influential membership than the ban treaty (the NPT has 190 member states including the P5), has been unsuccessful in moving these states to join.
In some regards the adoption of the ban treaty is a little similar to the vegetarians of the world joining together to ban meat eating, a legitimate prohibition due to the substantial environmental, climatic and humanitarian impact of the meat industry (See 'Now is the Time for a Diet Change,' Pacific Ecologist Issue 18, Winter 2009). As a vegetarian myself, I would support such a move, but I would have no illusions that such a ban would be recognized by meat-eaters, nor that it would convince them to abandon their practice.
So, if the ban treaty does not apply to nuclear armed and allied States, and they are unlikely to join, can it be used in other ways to make an impact? And here, the answer is a resounding yes!
There are two key ways in which States parties, parliamentarians and civil society can use the ban treaty to make a significant impact on the policies and practices of the nuclear-armed and allied States:
1. By adopting national implementation measures that prohibit financing and transit of nuclear weapons;
2. By using the ban treaty to put political pressure on these States to adopt nuclear risk reduction and disarmament measures, including through the Non-Proliferation Treaty process, but especially at the 2018 UN High-Level Conference on Nuclear Disarmament (2018 UNHLC).
On July 5, as the ban treaty negotiations were drawing to a close, the PNND held a press conference at the UN at which they released a Parliamentary Action Plan for a Nuclear-Weapon-Free World with details on how parliamentarians could implement these measures, in cooperation with civil society.
National implementation: Prohibiting nuclear weapons investments
The nuclear ban treaty could impact on nuclear weapons policies if it results in divestment by States parties and others from corporations manufacturing nuclear weapons and their delivery systems.
These corporations are a major driver of the nuclear arms race. They actively lobby their parliaments and governments to continue allocating the funds to nuclear weapons. And they support think tanks and other public initiatives to promote the ‘need’ for nuclear weapons maintenance, modernization and expansion.
Many of the countries supporting the nuclear ban treaty have public funds (such as national pension funds) and banks operating in their countries that invest in these corporations.
The new treaty does not specifically prohibit such investments. However, States parties to the treaty agree not to ‘assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.’ This can be interpreted as prohibiting investments in nuclear weapons corporations.
If a number of States Parties to the treaty, encouraged by their parliamentarians and civil society, decide to prohibit investments in nuclear weapons corporations as part of their national implementation measures, this could highlight the unethical corporate practice of manufacturing such weapons, damage the standing of such corporations and constrain their lobbying power.
In 2016, UNFOLD ZERO, PNND, World Future Council, International Peace Bureau (IPB) and others launched 'Move the Nuclear Weapons Money', a campaign and resource guide on cutting nuclear weapons budgets in nuclear-armed States, redirecting these funds to meeting economic and environmental needs such as promoting renewable energy and protecting the climate, and implementing nuclear divestment globally in order to support such efforts. Move the Nuclear Weapons Money is part of the wider Global Campaign on Military Spending, organised by IPB.
A handful of countries (Lichtenstein, New Zealand, Norway and Switzerland) have already implemented nuclear divestment policies through action by parliamentarians (mostly PNND members) and civil society. The influence so far has been moderate, but if they were joined by 40, 50 or even 100 more countries (as they ratify the ban treaty), this influence would multiply exponentially.
Photo: Rob van Riet (World Future Council) speaking at a press conference at the UN in Geneva on the issue of the ban treaty and nuclear weapons divestment.
Move the Nuclear Weapons Money also encourages nuclear-weapons-divestment by cities, universities and religious institutions in nuclear-armed and allied countries, building on the nuclear divestment example of the city of Cambridge MA (USA) and the recent resolutions of the U.S. Conference of Mayors which call for re-direction of nuclear weapons spending to meet human and environmental needs.
Divestment was one of the key tools that the international community used to move South Africa to end apartheid. Nuclear divestment could be the game-changer to finally end the power of the nuclear weapons corporations to keep the nuclear arms race running.
National implementation: prohibiting transit
Another step that States parties to the Treaty on the Prohibition of Nuclear Weapons could take that would impact directly on the policies and practices of the nuclear-armed states is to prohibit the transit of nuclear weapons through their territorial waters and airspace.
The new treaty infers that allowing such transit by nuclear-armed states would be in violation of the treaty provision under which States parties to the treaty agree not to ‘assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.’ However, the treaty leaves it up to each State party on how to implement this provision.
Some of the countries in the UN negotiations on the treaty argued that a ban on transit would be too difficult to implement, verify and enforce, especially as nuclear-armed States refuse to confirm or deny which ships and airplanes are carrying nuclear weapons.
However, Aotearoa (New Zealand) Lawyers for Peace and PNND submitted a paper to the ban treaty negotiations reviewing the experience of New Zealanda country which has adopted legislation prohibiting transit of nuclear weapons and has been successful in implementing this. PNND and UNFOLD ZERO are therefore encouraging and assisting States Parties to the treaty to include a prohibition on transit in their national implementation measures.
Using the ban treaty to put political pressure on the nuclear-armed and allied States
The ban treaty includes provisions for States parties to request other States to join the treaty (Article 12) and for States possessing or having control over nuclear weapons to join the treaty and adopt a program for elimination of their nuclear weapons (Article 4). States parties (and civil society) will probably make such requests to the nuclear-armed and reliant States, who will inevitably say no, just as the States parties to the NPT regularly call on India, Israel and Pakistan to join the NPT without success.
But this should not be the end of the conversation with the nuclear-armed and allied States. Such a call should always be accompanied with the follow-up; "If you can’t join the ban treaty, here are other measures you could take…". The list can include key interim measures such as de-alerting, no-first-use, non-use, stockpile reduction, transparency and verification measures, and adopting a framework agreement for the complete prohibition and elimination of nuclear weapons. The ban treaty provides an opportunity to have this conversation in the public sphere thus increasing the pressure on the nuclear armed and allied States to deliver something in response.
The Parliamentary Action Plan for a Nuclear-Weapon-Free World notes that the current nuclear posture reviews, as well as the 2018 UN High Level-Conference on Nuclear Disarmament and the 2020 NPT Review Conference, provide political opportunities to advance these important incremental measures.
The Ban Treaty and the 2018 UN High-Level Conference on Nuclear Disarmament
Nuclear armed and allied States are able to dismiss the Treaty on the prohibition of Nuclear Weapons as not relevant to them and which they can ignore. It is not so easy for them to ignore the 2018 UN High-Level Conference on Nuclear Disarmament.
There is a general expectation (from media, parliaments, civil society and other governments) that governments will participate in UN high-level conferences at the highest level, i.e. by the President or Prime Minister, and that these conferences will deliver concrete outcomes.
As such, recent UN high-level conferences have been very successful, resulting in the adoption of the sustainable development goals, Paris agreement on climate change, NY declaration on refugees and migrants and the 14-point action plan to protect the oceans.
Already the 56 member parliaments of the OSCE Parliamentary Assembly (which includes the parliaments of four nuclear armed and all the NATO countries) have called ”on all participating OSCE States to participate in the 2018 UN international conference on nuclear disarmament at the highest level, to include parliamentarians in their delegations to the conference and to pursue the adoption of nuclear risk reduction, transparency and disarmament measures at the conference.” (Tblisi Declaration, adopted July 5, 2016). The ban treaty could be used to put additional pressure on the nuclear-armed and allied states to adopt such measures at the 2018 UNHLC.
The 2018 UNHLC could also be an opportunity for non-nuclear countries to announce their ratification of the nuclear ban treaty. If 50 ratifications are achieved by the 2018 UNHLC, then this could be the occasion to announce its entry-into-force.
The 2018 UNHLC is also gaining traction amongst civil society as the most significant opportunity to make progress in the short-to-medium term. In addition to it being highlighted by UNFOLD ZERO and in the Parliamentary Action Plan for a Nuclear Weapon Free World, a special civil society working group on the 2018 UNHLC has been established by Abolition 2000, the global network to eliminate nuclear weapons.
On the importance of incremental measures
For those who have given up nuclear deterrence, or never relied on it in the first place, it is tempting to call on those relying on nuclear deterrence to do the same. After all, those of us who do not rely on nuclear deterrence know that it is not necessary for security, and that it creates unacceptable risks to humanity.
But for those who rely on nuclear deterrence, and have done so for years, going cold turkey (immediate and total abandoning of nuclear deterrence and acceptance of a comprehensive prohibition) does not appear feasible or desirable. They require a phased approach, with incremental measures to reduce the role and numbers of nuclear weapons combined with verification and confidence-building measures in order to provide a basis to then go to zero nuclear weapons.
Global Zero has proposed such a plan to get to zero nuclear weapons, and has support for this from approximately 300 legislators and former officials from the nuclear armed and allied States. It is a reasonable plan, if the incremental measures are indeed implemented by the nuclear-armed and allied States, something which has not happened to date.
During the ban treaty negotiations, Netherlands proposed an option of such a phased approach for nuclear-reliant states interested in joining the treaty. This was not supported by other states negotiating the treaty, effectively closing the door to nuclear-armed and reliant States joining the ban treaty (see Explanation of Vote by The Netherlands).
However, this has not closed the door to ban treaty supporters engaging with nuclear-armed and allied States, as long as the call on these states is not restricted to joining the treaty, but is more flexible to urge the adoption of incremental nuclear disarmament measures. [IDN-InDepthNews – 20 July 2017]
Top Photo (left to right): Commander Robert Green (UK Royal Navy, retired), Bill Kidd (Member of the Scottish Parliament and PNND Co-President), Alyn Ware (PNND Global Coordinator), and Jonathan Granoff (President of the Global Security Institute) at the press conference at the UN on July 5 at which the Parliamentary Action Plan was released.
Middle Photo: Rob van Riet (World Future Council) speaking at a press conference at the UN in Geneva on the issue of the ban treaty and nuclear weapons divestment.
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