States Seek Ban Treaty by Summer

May 2017
By Kingston Reif and Alicia Sanders-Zakre

In the first week of historic negotiations on a treaty to prohibit nuclear weapons, more than 100 countries without nuclear weapons started a process that could have far-reaching consequences for the future of nuclear deterrence and disarmament.

The talks began against the backdrop of strong opposition from the nuclear-armed powers and many of their allies, including the United States and most members of NATO, who contend that such an accord would undermine stability based on nuclear deterrence.

The push to begin negotiations on a ban treaty reflects growing concern among non-nuclear-weapon states about the devastating humanitarian consequences of any use of nuclear weapons, the rising risks of conflict between states with nuclear weapons, and frustration at the slow pace of nuclear disarmament by the nine nuclear-armed countries.

Although supporters expressed hope that agreement on a treaty text could be reached this summer, that goal may be elusive due to disagreements that emerged about how comprehensive the new instrument should be, as well as other legal and technical issues. If a treaty is not concluded by that date, a new UN General Assembly resolution authorizing additional negotiations will be required.

Last October, the UN General Assembly First Committee voted 123–38 with 16 abstentions in favor of a resolution introduced by Austria, Brazil, Ireland, Mexico, and South Africa to begin negotiations this year on a treaty prohibiting nuclear weapons. (See ACT, November 2016.) The full General Assembly approved the resolution in December.

The resolution called for a one-day organizational meeting, which was held in New York in January, followed by two negotiating sessions, March 27–31 and June 15–July 7.

The commencement of talks follows an open-ended working group that met in Geneva last year, in which a majority of participating states expressed support for starting negotiations on a “legally-binding instrument to prohibit nuclear weapons, leading towards their total elimination.” None of the nuclear-armed countries attended the sessions. (See ACT, September 2016.)

The working group’s final report said a new instrument “would establish general prohibitions and obligations,” which could include a number of elements, such as “prohibitions on the acquisition, possession, stockpiling, development, testing and production of nuclear weapons.”

Treaty Opponents’ Concerns

The beginning of talks underscored deep divisions between treaty supporters, who celebrated the occasion, and opponents, who largely boycotted the proceedings.

The first week was “very successful,” said Thomas Hajnoczi, the Austrian ambassador to the United Nations, in an April 12 email to Arms Control Today. He added that the session demonstrated commitment among participating states and consisted of substantial, issue-oriented dialogue.

Nuclear-weapon states continued to strongly oppose the negotiations. “There is nothing I want more for my family than a world with no nuclear weapons,” said Nikki Haley, the U.S. ambassador to the UN, at a news conference outside the General Assembly hall at the opening of the negotiations. “But we have to be realistic.” In a show of solidarity on the issue, she was accompanied by British UN Ambassador Matthew Rycroft, Deputy French UN Ambassador Alexis Lamek, and the UN ambassadors from several NATO members.

A few states were caught in the middle. Japan attended the first day of negotiations but only to give a statement explaining why it would not participate further. The Netherlands, the sole NATO ally in attendance, offered support for a legally binding prohibition, but said that it must be comprehensive and verifiable and have the support of the nuclear-armed states. China, which had reportedly considered participating, formally declared on March 20 that it would not attend.

Big Debates

The negotiations revealed points of contention among treaty supporters. Most states argued that the goal of negotiations should be adoption of a short and simple treaty by the end of July, but a few states, including Cuba, Iran, and Venezuela, expressed interest in a comprehensive treaty with extensive prohibitions and verification provisions that could take much longer to produce.

This “inherent tension” between the majority of participating states who seek a lean and flexible document and those that want something broader will be the “biggest obstacle to completing a treaty by July,” Thomas Countryman, former U.S. undersecretary of state for international security and nonproliferation, said in an April 13 email to Arms Control Today.

Debates also arose about appropriate elements to include in the treaty’s preamble, core prohibitions, and institutional arrangements.

There was consensus that the preamble should reference the humanitarian impact of nuclear weapons use, particularly the suffering of victims and testing. Many states said the preamble should note that the treaty builds on existing legal measures calling for nuclear disarmament, such as the 1996 International Court of Justice advisory opinion, and that it complements and does not undermine the 1968 nuclear Nonproliferation Treaty (NPT).

Countryman cautioned that participating states need to take special care to ensure that the principles embedded in the NPT are “reinforced in any ban treaty, or else we risk creating an incentive—and an excuse—for the very few states that could be inclined to begin, or further develop, a weapons program.”

Among other suggested elements for inclusion in the preamble were the gendered impact of nuclear weapons use, the contribution of civil society to disarmament, the universality and nondiscrimination of the treaty, the elimination of nuclear weapons from security doctrines, and the right of states to peaceful nuclear energy.

States agreed on several core prohibitions, including prohibitions on use, possession, development, acquisition, transfer, deployment, and assistance with prohibited activities.

Disagreements emerged on other issues, most notably on whether to prohibit the threat of nuclear weapons use. Some states, including Austria, considered banning the threat of use redundant because a ban on the use of nuclear weapons would implicitly also ban the threat of use. Other states insisted that explicitly banning the threat of use hopefully would delegitimize the inclusion of nuclear weapons in security doctrines.

States also debated how to address nuclear testing. Some states, including those where nuclear tests took place, argued that testing should be expressly banned while others argued that including a prohibition on testing would be unnecessary given the existence of the 1996 Comprehensive Test Ban Treaty (CTBT) and could create conflicts with that treaty.

In addition, some states argued that the transit of nuclear weapons should be prohibited, but others such as Malaysia pointed out that such a prohibition could prove exceedingly difficult to verify or enforce.

Many states said the treaty should have simple requirements for entry into force, lest it suffer the same fate as the CTBT. That 1996 treaty, which has yet to enter into force, requires a certain number of named countries to sign and ratify the agreement before it can take effect. For a ban treaty, Austria proposed that the entry into force threshold be set at ratification by 30 states.

States were divided on the questions of how and under what conditions nuclear-armed states could accede to the treaty. Although some states claimed nuclear-weapon states should be required to completely disarm before accession, others argued that the nuclear powers should be able to sign the treaty before disarming if they provide a detailed plan to do so at the time of signature.

Next Steps

Elayne Whyte Gómez, Costa Rica’s UN ambassador and president of the negotiating conference, said she plans to prepare a treaty draft text by late May.

Hajnoczi expressed optimism that a treaty could be concluded by the end of the second session in mid-July. “Given the progress achieved at the March session and the strong sense of commitment, an adoption of the convention text in July seems to be within reach,” the Austrian diplomat said. “It will depend on the speed of progress, political will, and flexibility of participating states whether the negotiations can come to a conclusion already this year.”

In order to conclude a treaty by the summer, it is likely that the crafting of detailed action plans describing disarmament timelines and commitments and associated verification provisions will be postponed until a later date.