FROM OBLIGATION TO ABOLITION: THE NON-PROLIFERATION TREATY AND A NUCLEAR WEAPONS CONVENTION



by Alyn Ware


In the 21st Century, as the ever-expanding exchange of peoples, cultures and trade across nations helps to ease nationalistic prejudices, and as the shibboleths of the Cold War subside, it is time to abolish nuclear weapons and make the world a safer place for all peoples.[i]


Rt Hon Helen Clark, Prime Minister of New Zealand


Introduction


At the 1995 NPT Review and Extension Conference, over 150 non-governmental organisations released an appeal to States parties to the NPT urging them to implement their Article VI disarmament obligations by commencing negotiations on a nuclear weapons convention (NWC) which would provide for the abolition and elimination of nuclear weapons. Two years later, at the 1997 NPT Prep Com, a coalition of lawyers, scientists, and disarmament experts released a Model Nuclear Weapons Convention which outlined the legal, technical and political requirements for complete nuclear disarmament.


Despite considerable public and official support for a NWC, negotiations towards its conclusion have not commenced, let alone been concluded. However, a number of recent developments have opened possibilities to both promote and make progress towards a NWC. These include advances in verification technology, compliance procedures and co-operative security mechanisms, changing international political and economic systems, increasing awareness of and attention to proliferation risks including those involving non-State actors, increasing engagement of key sectors of society including mayors and parliamentarians and increased public support for abolition.


As such, there are greater opportunities to promote nuclear abolition at the 2005 NPT. This could include, in particular, encouraging States parties to the NPT to give deeper consideration to the legal, technical and political requirements for the elimination of nuclear weapons - including the elements which would comprise a NWC – and to encourage the implementation of specific steps which might be possible in the current political climate.


Abolition as a bridge between non-proliferation and disarmament


New Zealand Minister of Disarmament Marian Hobbs noted recently that “There appears to be a growing divide in the international community between those countries (including the nuclear weapon states) prepared to take stronger action – unilaterally or through coalitions – against potential proliferators, and those countries calling instead on the Nuclear Weapon States to lead by example and take greater steps towards disarming their own nuclear weapons.”[ii] She noted that “This split could be bridged, and progress made on both non-proliferation and disarmament fronts, by adopting an abolition framework, i.e. through advancing norms which further de-legitimise nuclear weapons regardless of who may possess or aspire to possess them, and further developing the mechanisms which prevent their acquisition and provide for their systematic and verified elimination.”


Adopting an abolition approach can engage NWS and their allies as it encompasses their concerns regarding the proliferation of nuclear weapons and the need to strengthen controls to prevent such proliferation to States or non-State actors. Adopting an abolition approach also enables engagement with non-NWS, including the Non-Aligned Movement, as it indicates encompasses their perspective that action to prevent proliferation will not succeed unless there is also action to reduce the reliance NWS place on nuclear weapons in security doctrines.


Abolition more than just disarmament


Abolish: Formally end existence of (custom, institution). Oxford English Dictionary


Nuclear abolition comprises a wider system than the physical or technical process of dismantling and eliminating nuclear weapons. It describes a process of prohibiting the development, acquisition, possession, transfer, use and threat of use of nuclear weapons, but which also includes the elimination of the weapons themselves. Not only does this process encompass both non-proliferation and disarmament, but it also includes processes to de-legitimise nuclear weapons regardless of who possesses or seeks to possess them.


Thus, an abolition process is not necessarily halted by lack of progress in any one area – such as, for example, the continuing maintenance of large stockpiles of nuclear weapons by the NWS. Progress could instead be made in another area of abolition while preparing for the later possibility of progress on stockpiles. Such progress could be made domestically, regionally, bilaterally, pluri-laterally or multilaterally. Thus Hobbs notes that “Everyone can take steps forward to nuclear abolition, forward to world security.”


Abolition still utopian? Developments making abolition more feasible


a) Verification and compliance.


A key concern creating resistance by States to join disarmament agreements is whether or not it will be possible to verify whether other States are keeping to their obligations. This is probably more important with nuclear weapons than most other weapons. If most States comply with nuclear disarmament obligations and eliminate their stockpiles, but one State cheats and retains a nuclear capability, there are concerns that that State could gain unmatched political power through nuclear blackmail. Trevor Findlay (Director of Verification Information Technology – VERTIC) believes that advances in verification technology are such that “An impressive and reliable verification system can, even on the basis of current knowledge, be constructed to verify with high, although not exactly quantifiable, certainty that all parties to a universal nuclear disarmament treaty are complying with their obligations.”[iii]


Patricia Lewis, Director of the UN Institute for Disarmament Research (UNIDIR), argues that the act of checking compliance not only provides information, but also creates interaction between military personnel of previously hostile countries. There will be opportunities to assess capabilities with much greater confidence, building trust between States as they move to a situation in which they cannot annihilate each other. Indeed, she predicts that the confidence-building aspects could eventually be verification’s single and most important role: ‘We could move from a position of the threat of nuclear war as security to one of verification as security.’[iv]


b) Legal norms


Developments since 1995 which have strengthened the legal norm against nuclear weapons include:


i) The 1996 International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons which affirmed that the threat or use of nuclear weapons is generally contrary to international law,


ii) UN Security Council Resolution 1172[v] on the nuclear tests by India and Pakistan which affirmed “that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security.”


iii) UN Security Council Resolution 1540[vi] on the non-proliferation of weapons of mass destruction which a) requires all States to take measures to prevent the proliferation of nuclear, chemical and biological weapons, and b) introduces an element of individual, as well as State, responsibility by requiring States to take actions to prevent proliferation activities of non-State actors.


While the later two developments deal primarily with the proliferation of nuclear weapons and only minimally with possession by NWS, they open up a possible wider application of the norm against nuclear weapons to the nuclear weapons policies and practices of the NWS themselves – a fact partially recognised in Resolution 1540 which encourages “all Member States to implement fully the disarmament treaties and agreements to which they are party.” In its report to the UN Security Council 1540 Committee on implementation of operative paragraph 1, New Zealand made the application of this norm to disarmament more explicit by stating that:


“New Zealand’s strong and consistent policy is that all weapons of mass destruction (WMD) should be eliminated, and that this elimination should be verified and enforced through robust legally binding multilateral disarmament instruments. New Zealand provides no support whatsoever to any entity – whether State or non-State actor – attempting to develop, acquire, manufacture, possess, transport, transfer or use WMD and their means of delivery.”[vii]


c) International mechanisms


Nuclear doctrines have been developed in particular to deter or respond to a) a nuclear attack, b) attacks with other weapons of mass destruction, or c) acts of aggression with superior conventional forces that could threaten the survival of the State. Thus, the development of international security mechanisms which can address these situations could help to remove any perceived security requirement for nuclear weapons.


There has been a continual development and strengthening of such international security mechanisms particularly in the latter part of the 20th Century. These include:


i) A re-vitalised United Nations Security Council which has responded to aggression and assisted States to be liberated from occupying forces (for example Iraq’s invasion of Kuwait and Indonesia’s occupation of East Timor)


ii) A more effective International Court of Justice which has prevented or ended armed conflict by resolving territorial disputes, e.g. between Libya and Chad,[viii] and addressed other matters relating to international security, e.g. nuclear testing in the Pacific.[ix]


iii) The development of effective disarmament, verification and enforcement mechanisms through the International Atomic Energy Agency, United Nations Security Council (UNSCOM and UNMOVIC), Comprehensive Test Ban Treaty Organisation, Organisation for the Prohibition of Chemical Weapons and other treaty organisations. These mechanisms demonstrate the feasibility of verifying and enforcing nuclear disarmament


iv) Establishment of an International Criminal Court and the development of a norm of universal jurisdiction for war crimes and crimes against humanity which enables legal action to be taken against violators regardless of their position and thus acts to dissuade and prevent such criminal acts.


v) Improvement in the conflict resolution and mediation services of the United Nations Secretariat[x] and independent organisations such as the Carter Center.[xi]


These international mechanisms are by no means perfect – but perfection is not required to adopt an abolition approach. Once abolition is embraced and countries begin to travel down the abolition path, current mechanisms can be strengthened and improved, and new ones developed, in order to build confidence in a nuclear weapons-free world.


Legal, technical and political requirements for a nuclear weapons free world.


On 29 October 2004, Malaysia hosted a roundtable in New York at which they released a draft working paper for the 2005 NPT review Conference entitled “Follow-up to the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: Legal, technical and political elements required for the establishment and maintenance of a nuclear weapons free world.”[xii]


The paper calls for negotiations by States parties to the NPT and States not parties to the NPT which would lead to the conclusion of a nuclear weapons convention. As such it is the only official initiative at the 2005 NPT Review Conference which enunciates the goals of Abolition 2000, Mayors for Peace Vision 2020, and the overwhelming desire of the public, including in NWS, for a nuclear weapons convention. In proposing a non-discriminatory way to engage States not Parties to the NPT, the paper provides the most realistic approach to making progress towards universality of NPT norms.


Most importantly however, the paper reflects an understanding that key legal, political and technical issues need to be addressed before some States will be ready to negotiate for complete nuclear disarmament. As such, the approach presented by Malaysia is not to wait in hope that such issues will be addressed by themselves, but rather to call on States to identify these issues, discuss possible elements or mechanisms that can address these issues, and take action to develop or implement such elements or mechanisms or undertake preparatory work fro their development. As such, the Malaysia paper shuns ideology or criticism of States in favour of a very pragmatic approach to nuclear disarmament.


The paper refers to elements for a nuclear weapons free world which have already been developed or achieved. It also refers to commitments made on key disarmament steps such as those agreed at the 2000 NPT Review Conference. The paper notes other steps identified as necessary such as those proposed by the New Agenda Coalition, Canada and Germany.


However, Malaysia indicates that these in themselves do not provide a comprehensive plan for the legal, technical and political requirements for the achievement and maintenance of a nuclear weapons free world, and that further consideration should therefore be given to those additional elements required. To start this process, Malaysia outlines some of the elements required and draws from the Model NWC.


Malaysia also provides a negotiating model which combines the positive aspects of both the step-by-step approach favoured by some of the NWS and their allies, and the more comprehensive approach favoured by the Non-Aligned Movement. The approach, which Malaysia calls a comprehensive-incremental approach, calls for the achievement of disarmament steps within a comprehensive disarmament framework.


While it is important to concentrate international attention on concrete steps towards nuclear disarmament which are achievable in the short term, it is also important to simultaneously consider the requirements for a comprehensive nuclear disarmament regime in order to develop an international understanding of the final destination of nuclear disarmament steps. It can be difficult to construct a path to nuclear disarmament if we do not know more precisely what will be the end goal. Considering the elements of a nuclear disarmament regime at this stage could help give direction to intermediate steps and to overcome some of the roadblocks in the current disarmament fora[xiii].


Conclusion


The 21st Century has opened to new nuclear dangers including increased risks of proliferation to both States and non-State actors, as well as expanded nuclear doctrines from the NWS with new rationalisations for the threat or use of nuclear weapons.


The fundamental accord of the NPT, between the non-NWS who agreed not acquire nuclear weapons and the NWS who agreed to eliminate their arsenals, is being eroded on one side by the increasing proliferation risks and on the other by a lack of action on the part of the NWS to implement their disarmament obligations.


The divide between the non-NWS and the NWS (and some of their allies) is growing as the non-NWS become increasingly frustrated at the continuing (and expanding) nuclear doctrines of the NWS, while the NWS and their allies become more belligerent to prevent proliferation including through the threat and use of force. If not reversed, this trend threatens to further erode the non-proliferation regime and possibly lead to a catastrophic use of nuclear weapons.


Adopting an abolition approach – combining both non-proliferation and disarmament - could help bridge this divide, and help pave the way for progress on both, culminating in the complete prohibition and elimination of nuclear weapons.


As Hobbs has noted “At the NPT Review Conference in May, we need to build on the 13 steps. We need to position the NPT into an abolition framework. At the moment we are in danger of wasting energy arguing which steps are more important and forgetting about the end goal that we agreed to – the end/abolition of nuclear weapons – in Article VI of the Treaty.”[xiv]


A focus on abolition and the requirements to achieve a nuclear free world could indeed enhance the possibility for progress towards the fulfilment of the NPT goals and prevent it falling into disarray.[xv]