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The Complementarity Between Nuclear Ban Treaty and the NPT

By Sergio Duarte, Ambassador, former U.N. High Representative for Disarmament Affairs*

Photo: UN General Assembly adopts the Treaty Prohibiting Nuclear Weapons on July 7, 2017 in New York. Credit: UNODA

This article is based on a presentation by the author at a Pugwash Conference in Castiglioncello, Italy, on September 1, 2017. The full text is available at: http://www.uspid.org/Eventi/Archivio/2017_09Castiglioncello_main.html)

NEW YORK (IDN) - At least in one sense, the Treaty on the Prohibition of Nuclear Weapons adopted on July 7, 2017 can be considered an offspring of the 47-year old Nuclear Non-Proliferation Treaty (NPT). The negotiators of the former clearly intended to provide a path for the fulfilment of the obligation contained in Article VI of the latter. The two texts must not be seen as antagonistic toward each other, but rather as indispensable tools in the effort to eliminate the threat to humanity as a whole posed by the existence of nuclear weapons. This is a common objective of all multilateral instruments concluded by the international community since such weapons began to proliferate in 1945.

The urgent calls by the international community to fulfil that objective reflect the growing global recognition that a ban on nuclear weapons is an integral part of the normative framework necessary to achieve and maintain a world free of such weapons. The prohibition and elimination of nuclear weapons have been the subject of international debate at the United Nations since the first Session of the General Assembly in 1946. Costa Rica and Malaysia proposed a draft Nuclear Weapons Convention in 1997 and updated it in 2007. Former Secretary General of the United Nations Ban Ki-Moon brought this idea again to the fore in his 5-point nuclear disarmament plan in 2008.

The possessors of nuclear arsenals and most of their allies, however, have so far taken a negative attitude toward the Prohibition Treaty and argue that it risks undermining the existing security framework. Mankind, however, does not seem willing to rely forever on security arrangements based on the threat of mutual destruction of nuclear belligerents together with the rest of the world, as we know it. This can better be described as an "insecurity framework".

Most countries have come to the conclusion that possession of nuclear weapons would not enhance, but rather diminish their security. Contrary to that trend, the current nuclear weapon States insist that such armament protects their own security and seem to believe that the maintenance of international peace and security actually requires nuclear weapons, as long as such means of destruction remain in their exclusive possession. As their non-nuclear allies rely on a nuclear “umbrella” they are bound to support this doctrine.

It is important to stress that the new Treaty does not seek a ban of nuclear weapons in isolation of other measures nor does it disregard the consideration of the global security environment in the action leading to the elimination of nuclear weapons. No one disputes that the international community faces serious security challenges. Incidentally, many of such challenges result in fact from the very existence of nuclear arsenals. Early involvement and participation in the ban process would have enabled nuclear weapon States to raise and explain the security concerns that seem so overwhelmingly important to them. The assertion that the conditions that would make nuclear disarmament a realistic proposition do not exist right now has served to justify the indefinite maintenance of the current status quo. Such conditions, by the way, have never been clearly formulated.

It was alleged that the start of negotiations on a ban was not based on a consensus and would therefore risk increasing the schism between haves and have-nots. That schism is in fact an inherent feature of the NPT, which instituted a division of the world into two groups of States. Conversely, the implementation of the Prohibition Treaty – which is meant to apply erga omnes – would actually eliminate the gulf between these two groups. The credibility and effectiveness of the NPT is being undermined not by calls to implement its Article VI but by the perceived lack of compliance by the armed States with their commitments to nuclear disarmament.

The Prohibition Treaty provides a welcome opportunity for stepping up the actual implementation of Article VI. This is what is meant by the expression “leading to their elimination” contained in the General Assembly mandate for the negotiation of the Treaty. In fact, it would be hard to find any NPT obligation that could be considered incompatible with the commitments contained in the Prohibition Treaty.

Once it comes into force the Prohibition Treaty will become a part of the corpus of positive international law. It amounts to a categorical rejection of nuclear weapons. It is interesting to note in passing the opinion of some international jurists according to which States cannot continue to ignore or belittle the many international texts on the obligation of nuclear disarmament, including United Nations resolutions that are valid for all Member States of the Organization. This school of thought holds that there is a conventional and customary obligation to disarmament that must be followed by all States. This is, however, an issue better suited for legal experts.

A look at the history of the efforts of the international community to achieve multilateral control and final elimination of all weapons of mass destruction, particularly nuclear weapons, shows that concern with the effects of their use began many years before the existence of the NPT. Robert Oppenheimer, who is considered the father of the atomic bomb, is quoted to have recalled a passage from the ancient Hindu scriptures as he watched the blast of the "Trinity" test: "Now I am become Death, the destroyer of worlds". Soon after, atomic bombs were used to obliterate the Japanese cities of Hiroshima and Nagasaki. The survivors, as well as many of their descendants, still suffer the consequences of the exposure to radiation.

On January 24 1946, still under the shock of the catastrophic destruction caused by the new weapon, the General Assembly of the United Nations adopted Resolution no. 1 calling for the establishment of a Commission charged with "making specific proposals for the control of atomic energy to the extent necessary to ensure its use only for peaceful ends, and for the elimination of atomic weapons from national armaments", among other related measures. After three years of fruitless debates, those efforts were abandoned. The ideological dispute and military rivalry between the United States and the Soviet Union generated deep mistrust between them and resulted in an all-out arms competition that continued off and on for the next decades and now involves nine countries. The current efforts at "modernization" of nuclear arsenals are the latest expression of the nuclear arms race.

Several important agreements, all of which are instrumental to curb the proliferation of nuclear weapons were successfully negotiated over the past decades, such as the Outer Space, the Seabed and the Antarctic treaties, the Comprehensive Test-Ban Treaty (CTBT) and the five regional instruments that created nuclear-weapon free zones, among others. A treaty aimed at preventing the spread of nuclear weapons beyond the original proliferators was negotiated between the two States that possessed the largest nuclear arsenals and discussed between 1965 and 1967 at the Eighteen-Nation Disarmament Committee (ENDC).

Although no consensus was achieved, the two co-Chairs of the Committee decided to send a text to the UN General Assembly and the NPT came into being. For different reasons, several countries that initially hesitated slowly decided to become Parties to it. Membership kept growing; from 91 members in 1975 it increased to 178 in 1995, when the treaty was extended indefinitely. Today, as we know, only four States, all of which acquired nuclear weapons, are not Party to the NPT. None of its non-nuclear weapon Parties have obtained such weapons. Episodes of alleged non-compliance have so far been resolved outside the framework of the NPT.

Over time, bilateral and/or unilateral measures to reduce or limit the size of nuclear arsenals were adopted by some of the nuclear-weapon possessors. It is estimated that the total number of existing nuclear weapons decreased from about 70.000 at the height of the Cold War to some 15.000 today.

Nevertheless, all nuclear weapon States continue to devote huge financial and scientific resources to the improvement of the accuracy and destructive power of their weapons and show no inclination to accept irreversible, legally binding commitments to eliminate of their atomic arsenals within specific timelines. None of the existing bilateral or unilateral commitments to reduce or limit arsenals that they entered into is organically linked to the goal of nuclear disarmament.

Stimulated by frustration at the lack of concrete results and by humanitarian concerns, a movement to promote more effective measures to achieve nuclear disarmament gradually gained ground among the members of the NPT, particularly since its indefinite extension in 1995. A growing awareness of the risks of the continued existence and the possible use of nuclear weapons has taken root among governments and civil society organizations.

At the 2010 Review Conference of NPT all States Parties to that instrument recorded for the first time ever their unanimous concern with the catastrophic humanitarian consequences of any use of nuclear weapons. In 2013 and 2014 three international conferences on the humanitarian impact of nuclear weapons concluded that no state or international body could address adequately the immediate humanitarian emergency caused by a nuclear weapon detonation and that its effects would not be constrained by national borders, affecting states and peoples in significant ways, regionally as well as globally.

The realization of the need to explore new avenues to break the current deadlock in the multilateral disarmament forums prompted the series of events that culminated in the adoption of the Treaty on the Prohibition of Nuclear Weapons. The report of the working group that recommended its negotiation recalled article VI of the NPT and noted that its text does not specify the effective measures that should be pursued in fulfilment of that article. The report also reaffirmed the importance of the NPT and of the commitments made therein and further considered that the pursuit of any measures, provisions and norms to attain and maintain a world without nuclear weapons should complement and strengthen the nuclear disarmament and non-proliferation regime, including the three pillars of the NPT.

At the following Session of the General Assembly in 2016 the First Committee established an open-ended Working Group to “develop proposals to take forward multilateral disarmament negotiations”. In 2017 a draft resolution based on the recommendation of the Working Group was introduced by a group of six States (Austria, Brazil, Ireland, Nigeria, South Africa and Mexico). It recalls, inter alia that the NPT serves as the cornerstone of the nuclear non-proliferation and disarmament regime and reaffirmed the obligations of the Parties to that Treaty as reflected in the outcome documents of the 1995 Review and Extension Conference and the 2000 and 2010 Review Conferences. Through Resolution 71/258, adopted by 135 votes in favour, 35 against and 13 abstentions the General Assembly decided to convene a Conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading to their elimination.

There was general convergence of views among the vast majority of participants in the Conference. The main differences to be resolved dealt with the relationship of the Treaty with other instruments of international law, including the Charter of the United Nations, the NPT, the CTBT and regional nuclear-weapon free zones, as well as with existing safeguards obligations concluded with the IAEA. The humanitarian considerations that were at the root of the promotion of the negotiation also received detailed attention.

Other important questions under discussion were the scope of the prohibitions to be included in the Treaty, the mechanism for accession by states that possessed, owned or controlled nuclear weapons, the stationing of nuclear weapons in the territories of other States, the responsibilities of the meetings of States parties and the procedures on amendments, universality, entry into force and withdrawal. Unlike the NPT, the Depositary is the Secretary General of the United Nations.

Despite the enthusiasm of its supporters and the disparagement of its opponents, it is too early to assess the impact of the Nuclear Weapons Prohibition Treaty on the current debate on the ultimate achievement nuclear disarmament. Over 50 States signed the instrument at the opening ceremony on September 20 and a few more have done so since, but we will have to wait for a while in order to gauge the extent and weight of international support to it. Some of the countries that participated in the negotiations may hesitate under pressure. Civil society organizations have an important role to play in building support for the Treaty. Upon ratification, individual countries will be able to consider the adoption of national legislation containing measures that can have an impact on policies and practices of nuclear weapon States.

Supporters of the Treaty know that it will not make nuclear disarmament happen in the short run but they are convinced that it will make the urgency of nuclear disarmament more visible to the public at large and hasten effective multilateral action. States will need to find a workable convergence between the existing normative basis and the new prohibition embodied in the Prohibition Treaty in order to ensure increased security for all nations and peoples.

The High Level Conference on Nuclear Disarmament scheduled for 2018 provides a welcome opportunity for States to participate in a process aimed at bringing new impetus to the non-proliferation and disarmament debate and at promoting concrete progress in this field, with the active support of civil society organizations. Rather than dismissing the Treaty on the Prohibition of Nuclear Weapons as unhelpful or counterproductive, States should ensure that it is used as a new and effective tool toward the common objective of ridding the world of nuclear weapons.

*Sergio Duarte was the UN High Representative for Disarmament Affairs with the United Nations Office for Disarmament Affairs (2007-2012). He was the President of the 2005 Seventh Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. A career diplomat, he served the Brazilian Foreign Service for 48 years. He was the Ambassador of Brazil in a number of countries, including Austria, Croatia, Slovakia and Slovenia concurrently, China, Canada and Nicaragua. He also served in Switzerland, the United States, Argentina and Rome. Since end of August he is President of the Pugwash Conference on Science and World Affairs. [IDN-InDepthNews – 3 October 2017]

Photo: UN General Assembly adopts the Treaty Prohibiting Nuclear Weapons on July 7, 2017 in New York. Credit: UNODA

IDN is flagship agency of the International Press Syndicate.

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