"No one can solve this problem alone, but together we can change things for the better." 

– Setsuko Thurlow
Hiroshima Survivor
June 6, 2016
Conference on Disarmament (CD)

CD Fails to Advance Agenda


Russian Foreign Minister Sergei Lavrov (second from left) addresses the Conference for Disarmament on March 20.  (Photo: Fabrice Coffrini/AFP/Getty Images)The Conference on Disarmament (CD) in Geneva concluded its first session of 2019 in late March without taking forward a program of work. Last year, the CD adopted a proposal to establish subsidiary bodies to advance the body’s work on four core areas: nuclear disarmament, fissile material, outer space, and negative security assurances. (See ACT, April 2018.) Since then, however, it has failed to create the bodies and remained divided on who should lead them.

“The result is that the CD has lost the momentum it began to build up last year,” said Aidan Liddle, the UK permanent representative to the CD, in a March 22 blog post. “A third of the way through the 2019 session, there’s no plan in place for conducting detailed discussions on the core issues,” he added.

The second CD session of 2019 takes place May 13–June 28 in Geneva.—ALICIA SANDERS-ZAKRE

CD Fails to Advance Agenda

Fissile Material Report Points Toward Treaty

An expert group tasked by the United Nations with laying the groundwork for the negotiation of a fissile material cutoff treaty (FMCT) completed its work June 8 with consensus recommendations that could be taken forward by a new subgroup of the Conference on Disarmament (CD).

“With this report, which has been aptly described as ‘two inches from a negotiating text’, the range of possible treaty provisions is further distilled in a manner that makes clear there is little more to be done on an FMCT other than to negotiate it,” Canadian Ambassador Heidi Hulan, who chaired the high-level preparatory group, told Arms Control Today in a June 18 email.

The FMCT preparatory group, mandated by a 2016 UN General Assembly resolution, was made up of representatives from 25 states who met for two weeks in 2017 and 2018. It followed on from the meetings of a group of governmental experts, convened in 2014 and 2015, on the same subject. The UN General Assembly in 1993 approved the negotiation of an FMCT in the CD, but the consensus-based CD has failed to start negotiations due to a few states’ objections.

The preparatory group’s discussions sought to clarify issues concerning a potential treaty’s scope, definitions, verification measures, and legal and institutional arrangements before negotiations begin. Its recommendations will go to the UN secretary-general, the General Assembly, and the CD, where they could inform the work of a new subsidiary body, created in February in part to discuss the negotiation of an FMCT. With the preparatory work completed, the CD “needs to be held to account for its negotiation, and finally end the production of fissile material for nuclear weapons,” wrote Hulan.—ALICIA SANDERS-ZAKRE

Fissile Material Report Points Toward Treaty

UN Disarmament Conference Delayed

A UN high-level conference on nuclear disarmament, originally scheduled for May 14-16, was indefinitely postponed following an April 26 UN General Assembly vote. The postponement reportedly is due to the failure to select a representative to preside over the meetings.

The 2017 UN General Assembly adopted a resolution calling for a high-level conference in 2018 to review progress on negotiations on effective nuclear disarmament measures. All nuclear-weapon states except China voted against the resolution in the General Assembly’s First Committee. Although the United States considers the meeting to be “redundant” and a “waste of resources,” it is still continuing to evaluate whether it will attend the meeting, a State Department official told Arms Control Today in an April 17 email. The conference follows a similar 2013 meeting. That meeting was divided between those, including nuclear-weapon states, that advocated for an incremental approach to disarmament and other countries, including those in the Non-Aligned Movement, which pushed for a treaty banning nuclear weapons.—ALICIA SANDERS-ZAKRE

UN Disarmament Conference Delayed

Statement by Daryl G. Kimball on Challenges on Disarmament and Opportunities for Progress



Political and Security Challenges on Disarmament
and Opportunities to Achieve Progress 

Daryl G. Kimball, Executive Director, Arms Control Association
Framework Forum Roundtable organized by the
Canadian Mission, the Middle Powers Initiative, and Friedrich-Ebert Stiftung 

Mission of the Government of Canada in Geneva, April 18, 2016

Under Article VI of the nuclear Nonproliferation Treaty (NPT), each of the parties, including the nuclear-weapon-state parties, “undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.”

In its 1996 advisory opinion, the International Court of Justice (ICJ) found that the threat and use of nuclear weapons was generally illegal, but it could not decide whether this illegality applied “in an extreme circumstance of self-defense in which the very survival of a State would be at stake.” Three judges dissented from that ruling, arguing that nuclear weapons were illegal in all circumstances. In its 1996 opinion, the ICJ also concluded unanimously that the disarmament obligation is not limited to NPT parties.

But today, and contrary to these legal obligations, progress on nuclear disarmament is at a standstill, and the risk of unbridled nuclear competition is growing.1

U.S. MX missile re-entry vehicles being tested at Kwajalein Atoll. Each line represents the potential explosive power of about 300 kilotons of TNT. All nine of the world's nuclear weapon states are replacing or upgrading their nuclear weapons strike capabilities. (Photo courtesy of Department of Defense.)As the delegations here at the Conference on Disarmament (CD) and the Open-Ended Working Group (OEWG) on Disarmament realize, there are still no legally-binding restrictions on the nuclear buildups of world’s four non-NPT nuclear-armed states, and are currently no active bilateral or multilateral negotiations to further regulate, cap, or reduce the stockpiles of any of the world’s five original nuclear-armed states.

Worse still, key treaties like the Comprehensive Test Ban Treaty (CTBT) have not yet entered into force due to political divisions in Washington and inaction by seven other Annex 2 states, leaving the door to renewed nuclear weapons testing ajar twenty years after the Conference on Disarmament completed its negotiation and the treaty was opened for signature.

In addition to the tensions between key nuclear-armed states, the biggest challenge to the disarmament enterprise is the fact that all of the world’s nine nuclear-weapon states are, to varying degrees or another, devoting vast sums of money to modernize, upgrade, and in some cases expand the size and lethality of their nuclear arsenals and delivery systems.

As Hans Kristensen of the Federation of American Scientists wrote in in 20142, the numerical nuclear arms race between the United States and Russia may be over; but elsewhere, “a dynamic technological nuclear arms race is in full swing and may increase over the next decade.”

Although there is abundant evidence that even a “limited” exchange of nuclear weapons would result in a catastrophic humanitarian catastrophe—and in the view of many would violate the principles contained in the Law of War and be contrary to widespread interpretations of International Humanitarian Law—each of the nuclear-armed states continue to reaffirm the importance of such weapons for their security and maintain plans for the use of these weapons in a conflict.

U.S.-Russian Tensions

Undoubtedly, renewed tensions between Moscow and Washington are blocking progress on nuclear disarmament. The United States and Russia have a special responsibility to provide leadership to further reduce the role and number of nuclear weapons, but they are not doing so.

Although the number of nuclear weapons is down from its Cold War peak, the United States and Russia deploy far more nuclear weapons—some 1,800 each—than necessary for nuclear deterrence purposes. As President Barack Obama correctly noted in a speech in 2012, “we have more nuclear weapons than we need.”

Yet progress on further nuclear cuts is on hold. As President Obama recently acknowledged and the Russian [Ministry of Foreign Affairs] MFA confirmed, new negotiations on further nuclear disarmament beyond [the New Strategic Arms Reduction Treaty] New START are unlikely any time soon.

Russian leaders cite concerns about limited but unconstrained U.S. ballistic missile interceptors, NATO conventional military capabilities, and third-country nuclear arsenals, as reason for rejecting the June 2013 U.S. proposal for a further one-third reduction in each side’s strategic nuclear forces. But Russia has failed to put forward a counterproposal and has rejected U.S. offers to discuss the full range of strategic issues.

Complicating matters, Russia also has tested ground-based cruise missiles in violation of the 1987 Intermediate-Range Nuclear Forces (INF) Treaty. U.S. and Russian officials say they are interested in discussing the issue, but the matter remains unresolved. So long as it does, the prospects for negotiation of a follow-on agreement to New START are low.

Making matters even worse, Russian officials have begun to highlight their nuclear forces as a deterrent against what they see as increasingly threatening U.S. and NATO conventional military capabilities. Late last year, Russia “leaked” plans for a new nuclear-armed underwater torpedo, implying it is eyeing new types of nuclear weapons.

Now, in a troubling shift of rhetoric, the Defense Department has unwisely begun to frame its unaffordable, all-of-the-above plan for replacing and upgrading U.S. strategic bombers, nuclear-armed cruise missiles, and land- and sea-based strategic nuclear forces as part of its strategy to “counter Russia’s aggressive policies in Eastern Europe,” according its fiscal year 2017 budget request.

In reality, U.S. nuclear weapons, including the remaining forward-deployed tactical nuclear weapons are irrelevant to the protection of nervous NATO allies in the Baltics and elsewhere.

Obama and his successor, along with Russian President Vladimir Putin, have a responsibility to pull back from a nuclear action-reaction cycle that would put both countries at greater risk and block further nuclear reductions for many more years to come.

Other Nuclear-Armed States

Meanwhile, as the U.S. and Russian tensions and arsenals attract most international attention, China, India, and Pakistan are all pursuing new ballistic missile, cruise missile, and sea-based nuclear delivery systems3 themselves and increasing the size of their warhead stockpiles or their capacity to produce material to make more weapons.

Although smaller in number, these arsenals are just as dangerous. Pakistan has lowered the threshold for nuclear weapons use in a potential conflict with India by developing tactical nuclear weapons capabilities to counter perceived Indian conventional military threats.

Pakistan’s stated concern about India’s larger fissile stocks has led it to block negotiations on a fissile material cut-off treaty, even though the United States has recently opened the possibility of changing the mandate to address fissile stocks4.

For its part, India says it would support fissile cut-off talks, but it appears to be expanding its fissile material production capacity as the CD remains deadlocked.

Leaders in Beijing, New Delhi, and Islamabad profess support for nondiscriminatory approaches to disarmament and minimal deterrence, but their programs are moving in the opposite direction and there is little or no dialogue among them, and with others, on nuclear risk reduction options.

Chinese officials suggest they will not consider limits on their nuclear arsenal unless there are additional, deeper U.S. and Russian nuclear weapons cuts.

Although North Korea may be under tighter and tighter international sanctions, its nuclear weapons and ballistic programs remain unconstrained. With further nuclear and ballistic missile tests, it will likely have missile-deliverable nuclear warheads.

Israel’s nuclear opacity and the inability of the Arab League to find a way to agree on an agenda acceptable to Israel for a meeting Middle East Nuclear WMD Free Zone Treaty has frozen discussion of practical measures to reduce nuclear and missile dangers in that region.

Another challenge is the relatively low-level of public and policy-maker awareness about the dangers of renewed nuclear competition and the consequences of nuclear weapons use is relatively low in the United States—and perhaps elsewhere.

While there is support among Democrats in Congress for efforts to further cut U.S. and Russian arsenals, there is strong skepticism among Republicans in Congress about any further nuclear reductions, and even though the U.S. Defense Department acknowledges that it cannot afford its costly, all-of-the-above plan to replace each component of the U.S. nuclear arsenal5, for the time being there is bipartisan support for most U.S. nuclear weapons modernization programs.

Moving Forward

Obviously, these are very challenging conditions. These difficulties are reflected in the inability to achieve consensus here in Geneva at the CD and in the failure of the nuclear weapon states to meet key 2010 NPT Review Conference commitments and the inability of the states parties at the 2015 NPT Review Conference to agree on an updated action plan on disarmament.

Frustrated by the slow pace of the so-called “step-by-step approach” to disarmament, many non-nuclear-weapon states have tried to catalyze progress through the humanitarian consequences initiative. The effort has helped raise awareness once again about the unique destructive power of nuclear weapons and the dubious legal and moral basis for their possession and use.

But that initiative and the open-ended working group to discuss possible measures “to fill the legal gap for the prohibition and elimination of nuclear weapons" has not yet produced a unified, realistic diplomatic proposal for halting nuclear competition or starting multilateral disarmament talks.

There is no substitute for serious dialogue, the political will and support to achieve results, and international and domestic pressure to achieve meaningful results.

Simply repeating calls for action are not sufficient. Creative, practical ideas are needed to overcome persistent obstacles and new challenges.

It does not appear to me that there is any one initiative that can overcome these broader systemic challenges that impede progress on disarmament.

Rather, it will likely take the pursuit of multiple, practical, and sometimes bold, initiatives on the part of responsible leaders and groups of states.

So, what options might states participating in the OEWG and the CD pursue to jumpstart progress? Allow me to briefly comment on a few that are in circulation here in Vienna and to offer a few others for your consideration.

  • A Ban Treaty
    At the February OEWG discussions some states and civil society campaigners suggested it is time to launch talks on a treaty to ban nuclear weapons possession and use. Such a ban is, in my view, eventually a necessary step toward a world without nuclear weapons.

    But if such a negotiation is launched and concluded, it would not help the nuclear weapon states meet their nuclear disarmament obligations and would not likely do much to change opinion, policies, dangerous nuclear use doctrines, or accelerate progress on the elimination of the nuclear arsenals in the nuclear-armed states.

    This is due in large part to the fact that the nuclear weapons states will simply ignore the process and the results. The key is to draw them in such a way that they are compelled or persuaded to shift their approach and accelerate action toward zero nuclear weapons.
  • Challenge Nuclear Weapons Use and Use Doctrines 
    Another, approach—which would help address the longstanding goal of assuring non-nuclear-weapon states against the use or threat of use of nuclear weapons—would be to pursue the negotiation of a legally-binding instrument banning the use of nuclear weapons.

    Such an instrument would not, as some have suggested, legitimize the possession of nuclear weapons. Even if the nuclear-weapon states do not initially join in the negotiation or sign the instrument, the process itself and the final product could further delegitimize nuclear weapons, strengthen the legal norm against their use, and put pressure on nuclear-armed states to revise their nuclear doctrines.

    Another approach would be to press each of the nuclear-armed states to report, in detail, on the physical, environmental, and human impacts of their nuclear war plans, if these plans were to be carried out, and how they believe the use of hundreds of such weapons would be consistent with humanitarian law and the laws of war as some nuclear-armed states claim6.

    Such a process could force an examination of dangerous nuclear doctrines and focus public attention on the catastrophic consequences of nuclear weapons use.
  • UN Study on Effects of Possible Nuclear Exchanges Between Weapons States
    Part of the OEWG mandate is to make recommendations on “measures to increase awareness and understanding of the complexity of and interrelationship between the wide range of humanitarian consequences that would result from any nuclear detonation.”

    One important way to do so is to launch a UN study on the climate effects and related humanitarian impacts of nuclear weapons use.

    Tremendous advances in climate modeling and research on both the immediate effects and impacts on climate and agriculture from large-scale nuclear weapons use have been completed since the United Nations looked at the issue 25 years ago. It is time for an up-to-date UN study and report on these issues to inform current and future debate and decisions on global nuclear policy.
  • Disarmament Discussions in the CD or Through Another Forum
    Theoretically, the CD can be a forum for a dialogue on disarmament. The United Kingdom has put forward a useful, and wide-ranging proposal for a working group to discuss and identify effective measures on nuclear disarmament7. It would appear to be flexible enough to all states’ interests into account. If states do not burden this proposal with poison pill demands, it could help extend the conversations taking place at the OEWG and engage key nuclear-armed states. If launched, it would be vital for all states to bring forward detailed and considered proposals, not tired talking points.

    Another option would be to initiate a series of high-level summits approach to put the spotlight on the issue and spur new ideas. This would complement the ongoing P5 [China, France, Russia, the United Kingdom and the United States] dialogue on nuclear terms and concepts and the humanitarian impacts initiative.

    Leaders from a core group of states could invite their counterparts from a representative group of 20 to 30 nuclear- and non-nuclear-weapon states to join a one- or two-day summit on steps to achieve a world free of nuclear weapons. The high-level meeting could be a starting point for ongoing, regular disarmament discussions at the expert and ministerial levels on the basis of a clear understanding of the devastating impacts of nuclear weapons use and an objective assessment of the security concerns of states.

    Borrowing a concept from the nuclear security summit process, all participants should be encouraged to bring “house gifts”—specific actions by states that would concretely diminish the threat of nuclear weapons use, freeze or reduce the number of nuclear weapons, reduce the role of nuclear weapons, bring into force key agreements such as the Comprehensive Test Ban Treaty, or make their nuclear programs more transparent.
  • UN Security Council and UN General Assembly Action to Reinforce the Test Ban Pending Entry Into Force
    The CTBT was concluded twenty years ago, yet entry into force is still many years away. It is essential that states that support the norm against nuclear testing support initiatives that raise the political and legal barriers for testing pending entry into force of the CTBT.

    Specifically, we urge you to actively support a non-binding UN Security Council resolution and a parallel UN General Assembly measure later this year that:
  1. Calls on all states to refrain from testing and calls upon those states that have not ratified the CTBT to do so at the earliest possible time;
  2. Declares that the conduct of a nuclear test explosion would defeat the object and purpose of the CTBT;
  3. Underscores the need for a continuous, real-time global nuclear test monitoring capability to detect, identify, and locate nuclear test explosions, and recognizes the vital contributions of the Comprehensive Test Ban Treaty Organization, including the International Monitoring System and International Data Centre.

    In light of the North Korea’s ongoing nuclear testing, the central importance of the CTBT to the NPT and nonproliferation, and the ongoing efforts by several nuclear-armed states to improve their capabilities, the time is right to take this initiative. The place to begin discussing it is the upcoming June 13 high-level meeting in Vienna on the CTBT.
  • Call for Parallel U.S.-Russian Reductions Without a New Treaty
    In 2010, all of the nuclear-weapon states committed “to accelerate concrete progress on the steps leading to nuclear disarmament,” including “all types of nuclear weapons.”

    Further nuclear reductions need not wait for a new U.S.-Russian arms control treaty. More states need to call upon the United States and Russia to accelerate the pace of reductions under New START to reach the agreed limits before the 2018 deadline and call on both states to continue to reduce force levels below the New START ceilings, to be verified with the treaty’s monitoring regime.
  • New START Follow-On Talks No Later Than 2017
    States can also call upon the leaders in Moscow and Washington to begin formal negotiations on a follow-on to New START, and on other relevant strategic weapons issues, no later than 2017.

    The aim should aim to cut each side’s strategic arsenals to fewer than 1,100 deployed strategic warheads and 500 deployed strategic delivery vehicles, including any strategic-range conventional prompt-strike weapons. Such talks can and should explore a wider range of issues, including transparency and confidence-building steps on tactical nuclear weapons and joint understandings on missile defense capabilities and deployments8. Talks should begin soon and before New START expires in 2021 
  • Reinforce the INF Treaty and Pursue Nuclear-Armed Cruise Missile Limits
    To sustain progress on nuclear disarmament, it is essential to reinforce and expand the INF Treaty. States at the CD and elsewhere need to speak up and call upon the United States and Russia to immediately resolve compliance concerns.

    The United States and other like-minded states could also propose and initiate talks with other states in talks on limiting and eventually phasing out all nuclear-armed cruise missile systems. President Obama could spur progress in this area by cancelling plans for a costly new U.S. air-launched cruise missile, which would have new military capabilities and is destabilizing former U.S. Secretary of Defense William J. Perry and others have proposed9.

    Such an initiative would allow the United States, Russia and other countries to forgo expensive modernization programs for such missiles, and in cooperation with other key states, head off dangerous cruise missile buildups around the globe.
  • Call On Other Nuclear-Armed States to Freeze Their Nuclear Buildups
    The world’s other nuclear-armed states must do their part too.

    In addition to urging the United States, China, and the other CTBT Annex 2 states to finally take the steps necessary to ratify the Comprehensive Nuclear Test Ban Treaty, Russia and the world’s other nuclear-armed states should be called upon by all NPT states parties to freeze the overall size of their stockpiles as long as the United States and Russia continue to reduce their nuclear arsenals. 

    A unified push for further U.S.-Russian arms cuts combined with a global nuclear weapons freeze by the other nuclear-armed states would help create the conditions for multilateral, verifiable nuclear disarmament and an eventual ban on nuclear weapons.

In the coming months and years, creative, bold approaches will be needed to overcome old and new obstacles to the long-running effort to eliminate the potential for nuclear catastrophe.

1. "Race for Latest Class of Nuclear Arms Threatens to Revive Cold War,” By William J. Broad and David E. Sanger, The New York Times, April 16, 2016

2. “Nuclear Weapons Modernization: A Threat to the NPT?,” Hans M. Kristensen in Arms Control Today, May 2014.

3. “India’s Submarine Completes Tests,” Kelsey Davenport, Arms Control Today, April 2016

4. “U.S. Floats New Fissile Talks Formula, “ Daryl G. Kimball, Arms Control Today, March 2016.

5. “The U.S. Nuclear Weapons Spending Binge,” by Daryl G. Kimball, Arms Control Today, December 2015

6. The June 2013 Report on the Nuclear Weapons Employment Strategy of the United States claims that: [t]he new guidance makes clear that all plans must be consistent with the fundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects. The United States will not intentionally target civilian populations or civilian objects.”

7. Letter dated 19 February from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the Conference on Disarmament.

8. “Second Report of the Deep Cuts Commission: Strengthening Stability in Turbulent Times,” published by the Institute for Peace Research and Security Policy at the University of Hamburg, April 2015.

9.“Overkill: The Case Against a New Nuclear Air-Launched Cruise Missile” by Kingston Reif, Arms Control Association Issue Brief, October 19, 2015


Under Article VI of the nuclear Nonproliferation Treaty (NPT), each of the parties, including the nuclear-weapon-state parties...

Country Resources:

A ‘Legal Gap’? Nuclear Weapons Under International Law

March 2016

By Gro Nystuen and Kjølv Egeland

02_NystuenEgeland.jpgOver the past five years, the international community has devoted attention to the humanitarian, environmental, and developmental consequences of nuclear weapons detonations. 

The final document of the 2010 Nuclear Nonproliferation Treaty (NPT) Review Conference referred for the first time in NPT history to the “catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed the need “for all States at all times to comply with applicable international law, including international humanitarian law.”1

The inclusion of this language in the 2010 document was perhaps not particularly significant in itself, as it stated the obvious. Rather, its significance lay in the initiative it licensed. Arguing that the humanitarian dimension required increased attention, the Norwegian government invited all interested states and organizations to a conference on the humanitarian impact of nuclear weapons in Oslo in March 2013. The next year, the Mexican and Austrian governments organized follow-up conferences in Nayarit and Vienna, respectively. Attracting more government delegations than the NPT Preparatory Committee meetings in 2013 and 2014, the series of humanitarian impact conferences appears to have supplied a meeting format that was in demand.

At the conclusion of the third and hitherto last of these conferences, the Austrian hosts submitted a document calling on states and other stakeholders to “fill the legal gap for the prohibition and elimination of nuclear weapons.”2 A few months later, the Austrian government announced that this “Austrian Pledge” would be called the “Humanitarian Pledge,” thus implying a broader ownership of the document. More than 120 states have now formally endorsed it.

One might ask what exactly this legal gap is. Although some claim that there is a gap that should be filled by a new legal instrument prohibiting the use and possession of nuclear weapons, others argue that there is no legal gap.3 Some have suggested that the legal gap is not one of substantive law but rather a “compliance gap.”4

This article seeks to bring some clarity to the question of a potential legal gap, investigating the legality of the possession and use of nuclear weapons under international humanitarian law and disarmament law. It concludes that there is a substantive legal gap because unlike chemical and biological weapons—the other categories of nonconventional weapons—nuclear weapons are not explicitly and comprehensively prohibited. Given the magnitude of the humanitarian consequences of nuclear weapons, this could be considered a paradox.5

The Use of Force

The primary objective of the UN Charter is to “save succeeding generations from the scourge of war.” The charter forbids the use of military force against states in general, but makes exceptions for self-defense and for use of force authorized by the Security Council. These rules in the charter apply equally to all use of force against states, irrespective of weapon type. No restrictions are imposed on nuclear weapons as such.

In an advisory opinion in 1996, the International Court of Justice (ICJ) responded to the question of whether the use of nuclear weapons could be permitted under international law. The court did not succeed in giving a clear answer, but concluded that it could not rule out the lawfulness of the use of a nuclear weapon in “extreme circumstances of self defence.”6 Because every armed conflict is likely to be perceived by states as an “extreme” circumstance of self-defense, it was unclear whether the court implied that the rules governing the justification for the use of armed force in the UN Charter (jus ad bellum) might set aside the rules governing the actual conduct of hostilities (jus in bello). It seems clear that if one makes the applicability of the rules governing the conduct of warfare (international humanitarian law) dependent on whether the use of force in itself is perceived as legitimate, then the former rules will seldom be seen as applicable because states commonly perceive the enemy’s use of force as unjustified. These two regimes are therefore, as a matter of law, distinct, applying independently of each other.

Conduct of Hostilities

Regulating the conduct of war, international humanitarian law, sometimes called the laws of war or the laws of armed conflict, is arguably the most important legal regime when considering the legality of the use of nuclear weapons. The key instrument is the 1977 Additional Protocol I to the 1949 Geneva Conventions, in addition to international customary law. Several rules laid down here are of particular importance.

03_NystuenEgeland.jpgThe first is the rule of distinction. According to this rule, parties to a conflict may not “employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”7 The terror bombings of Coventry, Dresden, and Tokyo during World War II would not be permissible under this provision. The nuclear bombings of Hiroshima and Nagasaki would equally be ruled out.

Several weapons have been explicitly prohibited, in part or in whole, because they have been deemed impossible or difficult to use without violating the rule of distinction. This is the case with biological weapons and chemical weapons, as well as anti-personnel landmines and cluster munitions. Nuclear weapons, however, are not subject to corresponding prohibitions. Accordingly, their use is generally governed by the rules of international humanitarian law.

The second norm of particular importance is the rule of proportionality. According to this rule, even if an attack is successfully directed against military objectives, the attack might still be considered unlawful if it causes harm to civilians and civilian objects that “would be excessive in relation to the concrete and direct military advantage anticipated.”8 Due to their fundamental properties, nuclear weapons are difficult to use without causing great collateral harm to civilians and civilian objects. Yet, that does not mean that lawful use is inconceivable. In his dissenting opinion to the ICJ’s 1996 advisory opinion, Judge Stephen Schwebel discussed scenarios in which nuclear weapons might be used lawfully. He came to the conclusion that the use of nuclear weapons “might well be lawful” if used, for example, against a submarine far out at sea.9

The third rule deals with “precautions in attack.” In the conduct of military operations, “constant care shall be taken to spare the civilian population, civilians and civilian objects.”10 For example, according to this rule, one must take “all feasible precautions” with a view to minimizing “incidental loss of civilian life, injury to civilians and damage to civilian objects.”11 In itself, this requirement does not explicitly rule out use of a nuclear weapon. As the International Committee of the Red Cross (ICRC) points out, the rule of precautions “does not imply any prohibition of specific weapons.”12

The fourth rule of international humanitarian law of particular importance is the prohibition on means of warfare of a nature to cause superfluous injury and unnecessary suffering. In contrast to the three rules above, which are designed to protect civilians, this fourth rule protects combatants. The first formulation of the unnecessary-suffering rule in modern international law was expressed in the 1868 St. Petersburg Declaration, which states that the “only legitimate object” of war is to “weaken the military forces of the enemy” and that this object would be “exceeded” by the use of weapons that “uselessly aggravate the sufferings of disabled men, or render their death inevitable.” The use of such weapons, so it says, would be “contrary to the laws of humanity.”

Nuclear detonations, of course, are more than just big explosions. The resulting ionizing radiation lingers for decades, thus increasing the risk of cancer. The rule on superfluous injury and unnecessary suffering contains an implicit requirement of assessing alternatives to the weapon planned for use. As legal scholar Stuart Casey-Maslen argues, “[S]hould a proposed use of nuclear weapons satisfy both the rule of distinction and the rule of proportionality, a further assessment must be made as to whether alternative, less destructive weapons might adequately fulfill the military task.”13

A fifth norm concerns the protection of the natural environment.14 It is generally prohibited for the warring parties to deploy means of warfare that cause widespread, long-term, and severe damage to the environment, although it is a matter of dispute between states whether this rule applies to nuclear weapons. France and the United Kingdom, as two nuclear-weapon states party to Additional Protocol I, have formulated reservations regarding its application to nuclear weapons.15

The rules described in the preceding paragraphs make clear that international humanitarian law would prohibit the use of nuclear weapons in almost all conceivable scenarios. For example, a tactical nuclear strike against a submarine far out at sea may not be a violation of the rule on distinction, but it could be a violation of the prohibition against superfluous suffering. Short of a specific ban on nuclear weapons, however, it is possible to argue that their use could potentially be lawful. It is theoretically possible to argue that nuclear strikes can be justified as long as the damage to civilians is not excessive in relation to the concrete, direct military advantage anticipated and there is no available alternative weapon that is less destructive.

The evidence presented at the conferences in Oslo, Nayarit, and Vienna demonstrated that the humanitarian consequences of nuclear weapons actually are worse than many had thought. As the ICRC and others have pointed out, this must affect how the legality of the use of nuclear weapons under international humanitarian law is assessed.16

Disarmament Law

04_NystuenEgeland.jpgContributing to a nuclear weapon-free world is a prominent aspiration of the treaties establishing nuclear-weapon-free zones.17 Covering large geographical areas and a large number of states, such zones represent an often underestimated legal and political dynamic with regard to protecting individuals and the environment against nuclear weapons. At present, more than 100 countries worldwide, covering more than 50 percent of the Earth’s surface, are parties to these treaties. In the southern hemisphere, 99 percent of the land area is part of such a zone.

These zones may be separated into three main categories: geographical zones covering uninhabited territory or areas, such as the moon or the seabed; regional zones, consisting of clusters of states or entire continents, including Latin America and the Caribbean, Africa, and subregions of Asia; and single, self-declared, nuclear-weapon-free countries. The treaty regimes on these zones generally prohibit production, receipt, storage, testing, or use of nuclear weapons, and several also contain a prohibition on dumping radioactive matter at sea or elsewhere. The zones’ potential for defusing the risk of regional nuclear arms races and decreasing the risk of nuclear weapons falling into the hands of nonstate actors is an important factor in international efforts to protect individuals and the environment from nuclear weapons.

The NPT is a global disarmament treaty that aims to prevent or at least limit the potential for use of nuclear weapons. The NPT preamble reflects a key driving force behind the treaty’s negotiation by referring to “the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples.”

Although certain scholars have questioned the importance of the NPT in curbing proliferation,18 there is general agreement among most governments that the NPT has been an effective brake on the spread of nuclear weapons. The NPT has proven less effective with regard to nuclear disarmament. As Irish Foreign Minister Charles Flanagan pointed out at the 2015 review conference, “[N]ot a single nuclear weapon has been disarmed under the NPT or as part of any multilateral process.”19

Often presented as a “grand bargain” between nuclear- and non-nuclear-weapon states, the NPT prohibits states from possessing nuclear weapons, except for the five states that had them by January 1, 1967. In exchange for their special status, these five states, like every other state-party, agreed to “pursue negotiations in good faith on effective measures” for nuclear disarmament (Article VI) and to facilitate the development of nuclear energy for peaceful purposes in non-nuclear-weapon states (Article IV). Yet, in the negotiating history and the subsequent review process of the NPT, disarmament always has played second fiddle to nonproliferation. According to NATO official Michael Rühle, “At the time of the treaty’s signing…, article VI seemed of little significance. The treaty was widely understood as a freeze on the number of existing [nuclear-weapon states], not as a means of disarming them. To put it bluntly, the treaty was supposed to perpetuate nuclear inequality indefinitely (or at least until 1995), and article VI was a way of making this fact a little easier to bear.”20

This can no longer be said to be the case. In its 1996 advisory opinion, the ICJ concluded that there exists “an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament.”21 An obligation to disarm, however, does not constitute a prohibition. Thus, although not uncontroversial, the statement of UK Prime Minister Tony Blair that the NPT “makes it absolutely clear” that the UK “has the right to possess nuclear weapons”22 is legally accurate. Comparing the NPT with the regimes on biological and chemical weapons, the most striking difference is that although the latter two contain categorical prohibitions against possession and use,23 the former does not. Given the horrific humanitarian consequences of nuclear weapons detonations, this may reasonably be called a legal gap.

On top of this legal gap in substantive law comes a possible compliance gap concerning the lack of nuclear disarmament as mandated by NPT Article VI, the 1995 NPT “extension package,” and the final documents of the 2000 and 2010 review conferences. The 2010 document lays out a 64-point action plan. There is considerable debate on whether, for example, the action plan from 2010 ought to have been undertaken in the five-year review period or whether it was a long-term road map.24 NPT nuclear-weapon states such as Russia and the United States argue that the stockpile reductions they have undertaken over the last couple of decades are more than enough in terms of Article VI implementation, but others argue that full implementation of Article VI requires negotiation of “effective measures” on nuclear disarmament. Article VI applies to all NPT states-parties, thus indicating that such negotiations of effective measures should be multilateral. At the 2015 NPT Review Conference, the Mexican delegation noted that “more than 40 years after the entry into force of the NPT and 20 years after its indefinite extension, the obligation to conduct multilateral negotiations in good faith to fulfil the goal of disarmament, as provided by Article VI of the NPT, is the only one of its provisions that has not been achieved yet.”25 The South African delegation argued that the framework for implementing Article VI “must be the product of an open multilateral process.”26

In fact, the only relevant measure specifically mentioned in the NPT preamble is a comprehensive nuclear test ban.27 Accordingly, the lack of agreement on a test ban treaty was a major source of friction at the first four review conferences. The Conference on Disarmament, having failed to reach consensus, could not adopt the Comprehensive Test Ban Treaty (CTBT), and the treaty was therefore subsequently adopted by the UN General Assembly in 1996. It has yet to enter into force, however, as it has not been ratified by several so-called Annex 2 states (the 44 states that possessed a nuclear reactor at the time of the CTBT negotiations and whose ratification, under the terms of the treaty’s Annex 2, is necessary for the treaty to enter into force), including six nuclear-armed states. Accession by the United States arguably would be a critical factor in securing support from the remaining Annex 2 states. Recent signals that the Obama administration is looking into reopening a debate on U.S. accession to the CTBT are welcome news, but it remains doubtful that the U.S. Senate can be swayed and that anything can be done before a new U.S. president takes office in January 2017.28

Concluding Remarks

A polarized debate over nuclear weapons and their legality has taken place over the past decades. Some states have asserted that international law permits the use of nuclear weapons, whereas others hold that their use constitutes a violation of international law. This debate gathered momentum with the UN General Assembly’s request for an advisory opinion by the ICJ in 1994 and the subsequent court hearings and 1996 publication of the opinion. Because the ICJ did not resolve the issue, the frontlines remained where they were, but now with the added element of each side taking the advisory opinion as evidence that it was right. This stalemate over the legal issues might have contributed to neutralizing the public debate rather than provoking public action to pressure governments for greater efforts to diminish the risk posed by nuclear weapons.

05_NystuenEgeland.jpgInternational law clearly places very heavy restrictions on nuclear weapons use. Nevertheless, there is no unequivocal and explicit rule under international law against either use or possession of such weapons. Although the two other categories of nonconventional weapons are explicitly prohibited because their use would conflict with  the requirements of international humanitarian law, the use, production, transfer, and possession of nuclear weapons are not explicitly prohibited. This may reasonably be labeled a legal gap.

The reference to this legal gap in the Humanitarian Pledge does not make it clear whether a prohibition should be separated from the process of physical elimination and, if so, which to pursue first. The question of sequencing is significant. Should prohibition precede elimination? Should elimination come first when conditions allow, with prohibition then following? Could they be pursued simultaneously, in the form of a treaty that would resemble the Chemical Weapons Convention? Should the prohibition form part of a negotiated structure of legal instruments—a formal framework that could set out an agreed sequence or foreshadow the need to agree on a sequence at the outset of the initial negotiations?

Four main approaches to nuclear disarmament feature frequently in debates in the UN General Assembly First Committee and the NPT review cycle: (1) a comprehensive nuclear weapons convention in which a single legal instrument would provide for prohibition and elimination and in which elimination would precede a prohibition, (2) a framework agreement in which different prohibitions and other obligations would be pursued independently of each other but within the same broad frame, (3) a step-by-step or building-block approach in which elimination would precede prohibition, and (4) a stand-alone ban treaty in which prohibition would precede elimination.29

Unsurprisingly, governments have different views on these approaches, depending on the country’s status under the NPT, its membership in other treaty regimes, and its military alliances. At this point, it is not clear which view will prevail. It seems safe to say, however, that the legal gap will continue to be a hotly debated topic in the months and years to come, including in the open-ended working group on “[t]aking forward multilateral nuclear disarmament negotiations” that is meeting in Geneva during 2016.30


1.   2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Final Document, Volume I, Part I,” NPT/Conf.2010/50 (Vol. I), 2010, para. I(A)(v).

2.   “Pledge Presented at the Vienna Conference on the Humanitarian Impact of Nuclear Weapons by Austrian Deputy Foreign Minister Michael Linhart,” n.d., http://www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/chairs-summary/.

3.   See Frank A. Rose, opening statement to the 2015 UN General Assembly First Committee, October 12, 2015, http://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com15/statements/12October_USA.pdf.

4.   John Burroughs and Peter Weiss, “Legal Gap or Compliance Gap?” Arms Control Today, October 2015.

5.   For a more detailed treatment of the legal issues addressed in this article, see Gro Nystuen, Stuart Casey-Maslen, and Annie Golden Bersagel, eds., Nuclear Weapons Under International Law (Cambridge: Cambridge University Press, 2014).

6.   International Court of Justice, “Legality of the Threat or Use of Nuclear Weapons,” July 8, 1996, para. 105(2)(E), http://www.icj-cij.org/docket/files/95/7495.pdf

7.   International Committee of the Red Cross (ICRC), “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protection of the Civilian Population,” n.d., art. 51(4)(c), https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=4BEBD9920AE0AEAEC12563CD0051DC9E.  

8.   Ibid., art. 51(5)(b).

9.   Stephen M. Schwebel, dissenting opinion in “Legality of the Threat or Use of Nuclear Weapons,” July 8, 1996, p. 98, http://www.icj-cij.org/docket/files/95/7515.pdf.

10.   ICRC, “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Precautions in Attack,” n.d., art. 57(1), https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=50FB5579FB098FAAC12563CD0051DD7C.

11.   Ibid., art. 57(2)(a)(ii).

12.   ICRC, “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Commentary of 1987, Precautions in Attack,” n.d., para. 2201, https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=D80D14D84BF36B92C12563CD00434FBD.

13.   Nystuen, Casey-Maslen, and Golden, Nuclear Weapons Under International Law.

14.   See ICRC, “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Basic Rules,” n.d., art. 35(3), https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0DF4B935977689E8C12563CD0051DAE4; J.M. Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,” International Review of the Red Cross, Vol. 87, No. 857 (2005): 191.

15.   Of the nuclear-armed states, China, North Korea, and Russia are parties to Additional Protocol I without reservations regarding its application to nuclear weapons. France and the United Kingdom are parties but with reservations on its application to nuclear weapons. The rest of the nuclear-armed states—India, Israel, Pakistan, and the United States—are not parties.

16.   ICRC, “Nuclear Weapons: Ending a Threat to Humanity,” February 18, 2015, https://www.icrc.org/en/document/nuclear-weapons-ending-threat-humanity (speech by Peter Maurer).

17.   Such zones are foreseen in Article VII of the nuclear Nonproliferation Treaty (NPT).

18.   For example, Etel Solingen, Nuclear Logics: Contrasting Paths in East Asia and the Middle East (Princeton, NJ: Princeton University Press, 2007).

19.   Charles Flanagan, Statement of Ireland to the 2015 NPT Review Conference, April 27, 2015, http://reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/statements/27April_Ireland.pdf.

20.   Michael Rühle, “Enlightenment in the Second Nuclear Age,” International Affairs, Vol. 83, No. 3 (May 2007): 511-522.

21.   Nystuen, Casey-Maslen, and Golden, Nuclear Weapons Under International Law.

22.   Nick Ritchie, “Trident: The Deal Isn’t Done,” Bradford Disarmament Research Centre, December 2007, p. 11, note 38, http://www.brad.ac.uk/acad/bdrc/nuclear/trident/trident_deal_isnt_done.pdf.

23.   The text of the Biological Weapons Convention does not explicitly mention use of biological weapons, but the states-parties have agreed that the treaty shall be interpreted to include a prohibition on use. See Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, “Final Document of the Seventh Review Conference,” BWC/CONF.VII/7, January 13, 2012, art. IV(16) (states-parties reaffirming that “under any circumstances the use, development, production and stockpiling of bacteriological (biological) and toxin weapons is effectively prohibited under Article I of the Convention”).

24.   See Gaukhar Mukhatzhanova, “Implementation of the Conclusions and Recommendations for Follow-on Actions Adopted at the 2010 NPT Review Conference Disarmament: Actions 1-22,” James Martin Center for Nonproliferation Studies, April 2015, p. 2, https://www.nonproliferation.org/wp-content/uploads/2015/04/150415_cns_monitoring_report.pdf; Jayantha Dhanapala and Sergio Duarte, “Is There a Future for the NPT?” Arms Control Today, July/August 2015; Reaching Critical Will, “The NPT Action Plan Monitoring Report,” March 2015, http://www.reachingcriticalwill.org/images/documents/Publications/2010-Action-Plan/NPT_Action_Plan_2015.pdf.

25.   Juan Manuel Gomez Robledo, Statement of Mexico to the 2015 NPT Review Conference, April 27, 2015, http://reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/statements/27April_Mexico.pdf.

26.   Nozipho Mxakato-Diseko, Statement of South Africa to the 2015 NPT Review Conference, April 29, 2015, http://reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/statements/29April_SouthAfrica.pdf.

27.   See David A. Koplow, “Bonehead Non-Proliferation,” The Fletcher Forum of World Affairs, Vol. 17, No. 2 (1993): 150.

28.   See Shervin Taheran, “Kerry, Moniz Urge Review of CTBT,” Arms Control Today, November 2015.

29.   For more on these approaches, see International Law and Policy Institute and UN Institute for Disarmament Research, “A Prohibition on Nuclear Weapons: A Guide to the Issues,” February 2016, http://unidir.ilpi.org/wp-content/uploads/2016/02/ILPI-UNIDIR-prohibition-study-PRINT.pdf.

30.   See UN General Assembly, A/RES/70/33, December 11, 2015.

Gro Nystuen is director of the Center for International Humanitarian Law at the International Law and Policy Institute in Oslo. Kjølv Egeland is an adviser at the center and a doctoral candidate in international relations at the University of Oxford, Wadham College.

Unlike chemical and biological weapons, nuclear weapons are not explicitly and comprehensively prohibited under international law. This may reasonably labeled a legal gap.

UN Mulls Rival Disarmament Proposals

November 2015

By Kingston Reif

Robert Wood, U.S. ambassador to the Conference on Disarmament, shown above in a September 2014 photo, said a recent Mexican proposal for a disarmament working group is “unacceptable.” [Photo credit: U.S. Mission to the United Nations in Geneva/Dominique Nicolas]UN member states are considering two competing proposals to advance nuclear disarmament, a reflection of the continuing differences among states on how to accelerate progress toward a world without nuclear weapons.

Each of the two proposals under discussion in the UN General Assembly First Committee, which deals with nuclear disarmament, would create an open-ended working group, a forum in which all UN members can participate.

The creation of a working group was a recommendation in the draft final document from the nuclear Nonproliferation Treaty (NPT) review conference that took place earlier this year. (See ACT, June 2015.) The proposal for the working group grew out of the frustration of many states with the lack of progress on nuclear disarmament.

According to the NPT document, the purpose of the working group would be “to identify effective measures for the full implementation of Article VI” of the NPT, “including legal provisions or other arrangements,” and to do so on the basis of consensus. Under Article VI, the treaty parties are to “pursue negotiations in good faith on effective measures relating to the cessation of the arms race at an early date and to nuclear disarmament.”

One working group proposal in the First Committee, submitted by Iran, closely resembles the language contained in the draft review conference document. It calls for a discussion on advancing nuclear disarmament and would operate on the basis of consensus. The working group would meet for four sessions of 10 working days each, with two sessions in 2016 and two in 2017. The group would send a report on its work, including agreed recommendations, to the UN General Assembly during the 2017 session.

Mexico, on behalf of a group of countries associated with the so-called humanitarian initiative, an effort focused on raising awareness of the humanitarian and societal impacts of nuclear weapons use, has offered an alternate proposal. A key difference with the Iranian approach is that under the Mexican resolution, the working group would operate according to the General Assembly’s normal rules of conducting business on the basis of a majority vote. The group would convene in Geneva in 2016 for up to 15 days and would present a report on its work to the General Assembly at its session next year.

The original version of the Mexican proposal also differed from the Iranian approach by specifying the end result of the working group’s effort: “to negotiate with a view to reaching agreement on concrete effective legal measures…that will need to be concluded to attain and maintain a world without nuclear weapons.” But an Oct. 29 version of the Mexican proposal is closer to the Iranian proposal in calling on the group “to substantively address” the legal measures.

The contrasting proposals have sparked a contentious debate within the First Committee about the purpose of the working group.

In an Oct. 29 tweet, Robert Wood, U.S. ambassador to the Conference on Disarmament in Geneva, said “Mexico [is] still pursuing an unacceptable” proposal for an open-ended working group. He added that the aim of the proposal “is to subvert [the] established [UN] disarmament machinery” and that it “will not succeed.”

Alexander Kmentt, director of disarmament, arms control, and nonproliferation in the Austrian Federal Ministry for European and International Affairs, encouraged states to support the Mexican resolution. In an Oct. 27 statement, he said that a forum is needed to allow all states to engage in discussions on nuclear disarmament “without the procedural setup that stifles progress in other fora of the UN disarmament machinery.” Austria is a co-sponsor of the Mexican resolution.

It remains to be seen if both proposals will come to a vote this month and, if so, which proposal will garner the most support. Resolutions in the First Committee require a simple majority to pass.

In remarks on Oct. 16 at a conference in Prague, Kim Won-soo, the acting UN high representative for disarmament affairs, said he expects “common ground” to be found on a working group concept that meets the needs of key member states.

The current session of the First Committee runs through Nov. 9.

Two competing proposals on disarmament reflect continued differences among UN states on how to achieve that goal.   

UN Disarmament Body Still Stalemated

By Kingston Reif

Kim Won-soo (center, on dais), acting UN high representative for disarmament affairs, addresses the Conference on Disarmament in Geneva on July 7. (UN Photo/Jean-Marc Ferré)As the 65-nation Conference on Disarmament (CD) nears the end of its annual session, the body mandated to negotiate multilateral disarmament treaties remains stalemated.

Nevertheless, some member states say they think progress is being made toward a global ban on the production of fissile materials for nuclear weapons.

For the third year in a row, an informal working group could not reach consensus on any of the CD’s four core issues: nuclear disarmament, a fissile material cutoff treaty (FMCT), the prevention of an arms race in outer space, and negative security assurances.

The CD, which operates on the basis of consensus, has not negotiated a disarmament agreement since the completion of the Comprehensive Test Ban Treaty (CTBT) in 1996.

Although some member states praised the efforts of this year’s iteration of the working group, other delegations lamented the recent trend of establishing informal discussion forums.

In an Aug. 17 statement, Mexico said the three years of effort by the working groups “had not left the Conference any closer to the adoption of a programme of work” and had produced “useless outcomes.”

Similarly, Austria said that although it was open to approaches that could advance negotiations on legally binding arrangements on disarmament, it would not “accept any future attempts to lower the expectations for the CD to conduct such negotiations.”

Austria warned that it would “assess…more carefully” the wisdom of continuing to use “scarce resources for informal discussions and activities.”

Since the end of negotiations on the CTBT in 1996, Russia, the United States, and many Western countries have sought a mandate at the conference to negotiate an FMCT. But Pakistan continues to oppose the start of FMCT talks unless the negotiating mandate explicitly includes existing stockpiles of materials in addition to new production. Russia, the United States, and others oppose that approach.

In 2009 the CD approved a preliminary work plan, but the plan collapsed after Pakistan withdrew its support. Pakistan says that it has a smaller stockpile of fissile materials than India and that a production freeze would put Islamabad at a disadvantage.

In an effort to break the FMCT deadlock, the UN General Assembly First Committee, which deals with disarmament, in 2012 approved a resolution by Canada to establish a group of governmental experts to discuss how to advance negotiations on an FMCT.

The group, which consisted of 31 experts and diplomats from 25 different countries, met in Geneva over eight weeks during 2014 and 2015 under the auspices of the United Nations. The group submitted its final report to the General Assembly in May.

The group was mandated to make recommendations on the key elements of a notional FMCT. The final report summarized the group’s deliberations and outlined a range of views on a possible FMCT, most notably on the issues of existing stocks versus future production, verification, governance, entry into force, and the definition of “fissile material.”

The members of the group expressed confidence that their report and the deliberations that were the basis for it “can serve as a valuable reference for States and should be a useful resource for negotiators of a future treaty.”

Most CD members applauded the work of the group of experts, with some members characterizing the intergovernmental assessment as a potential turning point on the issue of a fissile material production ban.

In an interview with Arms Control Today last October, Rose Gottemoeller, U.S. undersecretary of state for arms control and international security, said that although an FMCT “has been a great source of tension and anxiety,” the group of governmental experts “open[ed] the floodgates for substantive discussions on this matter” and “renewed the issue for the arms control community in the Conference on Disarmament in a very positive way.”

But Pakistan, which declined an invitation to join the group, said in a June 23 statement that the group “had been an ill-conceived experiment, which had failed to produce any consensus recommendation with any substance.” 

Pakistan also said another “downside” of the group was that not all nuclear-weapon states “had been represented in that forum” and that it “rejected [the group’s] report and assertion that the report could form the basis for further consideration” of an FMCT in the CD. 

As the Conference on Disarmament nears the end of its annual session, the body remains stalemated although some member states say they think there has been progress toward a fissile material cutoff treaty.

Nuclear Disarmament and Human Survival

Daryl G. Kimball

Since the U.S. bombings of Hiroshima and Nagasaki, the catastrophic effects of nuclear weapons have motivated ordinary citizens to push their leaders to pursue arms control and disarmament measures to reduce the threat of nuclear weapons use.

For decades, it has been well understood that the direct effects of a large-scale nuclear conflict could result in several hundred million human fatalities, while the indirect effects would be far greater, leading to the loss of billions of lives.

Since the end of the Cold War, the threat of a U.S.-Russian conflict has decreased, but the risk of a nuclear war in other regions has grown. Recent studies find that a nuclear exchange between India and Pakistan involving 100 detonations of 15-kiloton bombs would kill 20 million in the first week and reduce global temperatures by 1.3 degrees Celsius, thereby putting another 1 to 2 billion people at risk for famine.

Clearly, the use of nuclear weapons would result in humanitarian emergencies far beyond the immediate target zones of the warring parties and would violate the basic principles of international humanitarian law, including avoidance of attacks that could affect civilians indiscriminately.

Nevertheless, the world’s nine nuclear-armed nations still threaten to use their massive nuclear arsenals in the name of deterrence, and many continue to build up their nuclear war-fighting capabilities.

Appropriately enough, the 2010 Nuclear Nonproliferation Treaty (NPT) Review Conference final document expressed “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and the need for all States…to comply with applicable international law, including international humanitarian law.”

The NPT nuclear-weapon states committed to “diminish the role and significance of nuclear weapons” and “[d]iscuss policies that could prevent the use of nuclear weapons.” In keeping with the NPT document’s action plan, Norway hosted a conference last March in Oslo on the humanitarian consequences of nuclear weapons use. Mexico will host a follow-up conference in February. In April, 80 countries declared that “[i]t is in the interest of the very survival of humanity that nuclear weapons are never used again, under any circumstances.” In October, 125 states endorsed a similar statement.

Unfortunately, the five NPT nuclear-weapon states boycotted the Oslo conference, and several have criticized the April statement as a “distraction.” The arrogant and hostile response, particularly from France and Russia, has only deepened the frustration of the non-nuclear-weapon states.

Rather than dismiss the Mexico conference, the nuclear-weapon states should participate in and support future statements warning of the consequences of nuclear weapons use. Leading non-nuclear-weapon states also must come together around proposals that more effectively challenge dangerous nuclear doctrines.

The call from some states to negotiate a convention banning the possession of nuclear weapons in the moribund Conference on Disarmament (CD) is a recipe for inaction. Even if non-nuclear-weapon states were to adopt such a convention outside the CD, it would have little value without the support and participation of the NPT nuclear-armed states, which oppose such an effort.

A more promising way to meet the NPT action plan goal of assuring non-nuclear-weapon states against the use or threat of use of nuclear weapons would be to develop a legally binding instrument banning the use of nuclear weapons. This is the approach taken with respect to chemical and biological weapons through the 1925 Geneva Protocol.

Discussions on a ban on the use of nuclear weapons could begin in a new, dedicated diplomatic forum. Even if the nuclear-weapon states do not initially join in the negotiation or sign the instrument, the process itself and the final product would further delegitimize nuclear weapons, strengthen the legal norm against their use, and put pressure on nuclear-armed states to revise their nuclear doctrines.

Another approach would be to press each of the nuclear-armed states to explain the effects of its nuclear war plans at the 2015 NPT Review Conference. Each should be required to explain how the use of such weapons would be consistent with the law of armed conflict and other aspects of international human rights and humanitarian law.

With action on key disarmament initiatives at a near standstill, initiatives designed to jump-start progress are in order. For example, the United States could accelerate implementation of the New Strategic Arms Reduction Treaty, and Washington and Moscow could agree to reduce their stockpiles well below treaty-mandated ceilings. At the same time, other nuclear-armed states could pledge not to increase the overall size of their nuclear stockpiles, so long as U.S. and Russian leaders continue to slash theirs.

As President Barack Obama said last September, “The use of chemical weapons anywhere in the world is an affront to human dignity and a threat to the security of people everywhere.” That certainly holds true for nuclear weapons as well. It is vital that global leaders welcome and pursue new, creative approaches to disarmament in order to guard against nuclear catastrophe.

Since the U.S. bombings of Hiroshima and Nagasaki, the catastrophic effects of nuclear weapons have motivated ordinary citizens to push their leaders to pursue arms control and disarmament measures to reduce the threat of nuclear weapons use.

UN Vote Backs Talks on Nuclear Arms Ban

Tom Z. Collina

In a sign of rising frustration among states without nuclear weapons at the slow pace of disarmament efforts, the UN’s disarmament committee in New York passed a resolution in November with the support of 129 states calling for the “urgent” start of multilateral negotiations to eliminate nuclear weapons and designating Sept. 26 as the international day for their “total elimination.”

“Our delegations joined the call of the overwhelming majority of states for more urgency, focus, and new momentum for nuclear disarmament,” Ireland’s representative said after the Nov. 4 vote, also speaking on behalf of Austria, Liechtenstein, Malta, New Zealand, and San Marino.

First proposed in October, the resolution was meant as a follow-up to the high-level meeting on nuclear disarmament held Sept. 26 in the UN General Assembly. Speaking on behalf of the Non-Aligned Movement, which drafted the language, Indonesia’s representative, Desra Percaya, said Nov. 4 that the resolution underlined the strong support expressed at the high-level meeting for taking effective action toward a nuclear-weapons-free world. (See ACT, November 2013.)

The resolution, approved by the UN General Assembly First Committee, which deals with nuclear disarmament, calls for the “urgent commencement” of negotiations in the Conference on Disarmament (CD) in Geneva for the “early conclusion” of a comprehensive convention on nuclear weapons to prohibit their “possession, development, production, acquisition, testing, stockpiling, transfer and use or threat of use, and to provide for their destruction.”

The resolution also declares Sept. 26 the International Day for the Total Elimination of Nuclear Weapons to “mobilize international efforts” toward a nuclear-weapons-free world and calls for a second UN high-level meeting by 2018 on nuclear disarmament “to review the progress made in this regard.”

The resolution was approved by a vote of 129-28 with 19 abstentions and, unlike many of the other resolutions on which votes were taken, commits UN member states to future actions. The General Assembly is scheduled to vote on the resolution Dec. 5; the measure is expected to pass by a similar margin.

The General Assembly approves resolutions by majority vote, but the CD works by consensus. Therefore, no agreement on nuclear weapons elimination can be reached without the support of the five original nuclear-weapon states.

Four of those five—France, Russia, the United Kingdom, and the United States—voted against the resolution. China voted in favor of it, but said that countries with the largest nuclear arsenals should continue to take the lead in reductions. All five states are parties to the nuclear Nonproliferation Treaty (NPT).

In a joint statement, France, the UK, and the United States said that “a practical step[-]by[-]step process is the only way to make real progress” on disarmament and that “there are no short cuts.” The states said that they are seeking “early commencement” of negotiations on a fissile material cutoff treaty (FMCT) at the CD and “prompt” entry into force of the Comprehensive Test Ban Treaty (CTBT).

India and Pakistan, which have nuclear weapons but are not members of the NPT, voted in favor of the resolution.

The other states that voted against the resolution or abstained are members of NATO, such as Germany, which collectively “share” U.S. nuclear weapons, or are “nuclear umbrella” states that have nuclear security agreements with Washington, such as Japan.

Many non-nuclear-weapon states argue that the step-by-step process is not working and, according to a European diplomat, is “not very credible.” They point out that the FMCT talks have been stalled in the CD since the late 1990s and the United States has not made progress toward ratification of the CTBT since the Senate voted against ratification in 1999.

Noting that the next NPT review conference will take place in 2015, the joint statement by the three nuclear-weapon states said that planning a conference on nuclear disarmament in 2018 “is not consistent with the NPT agenda” and “risks weakening commitment among states to securing a successful outcome” at the review conference.

Since 1975, NPT review conferences, held every five years, have often been fraught with discord over the slow pace of disarmament efforts. Three of them—in 1980, 1990, and 2005—failed to agree on a final document, considered by many states and independent observers to be a key measure of the success of the month-long meetings. There is widespread concern that the 2015 conference also may fail to reach consensus on a final document.

In their Nov. 4 joint statement, Ireland and the five other countries said they saw the resolution on nuclear weapons elimination as “entirely consistent” with the NPT, noting that Article VI of the treaty requires “effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament” and that the 2010 NPT Review Conference agreed to “the objective of achieving a world without nuclear weapons.”

Non-nuclear-weapon states at the United Nations showed their growing impatience with inaction on disarmament by voting to start “urgent” talks on the elimination of nuclear weapons.

Disarmament Consensus Eludes UN

Tom Z. Collina

As they complete their annual debate on disarmament and international security, the member states of the United Nations continue to struggle to agree on where to focus their efforts. The next logical step for many, a global ban on the production of fissile materials for nuclear weapons, has been effectively blocked by Pakistan.

Meanwhile, international support is growing to move directly to the elimination of nuclear weapons, which the declared nuclear powers oppose.

The “ongoing stalemate” of the UN’s disarmament work “remains deeply troubling,” EU representative Andras Kos said in an Oct. 22 statement at the UN. The Conference on Disarmament (CD) in Geneva has not negotiated a disarmament agreement for 16 years, leading CD Secretary-General Kassym-Jomart Tokayev of Kazakhstan to say in 2012 that nothing could “mask the stagnation in what should serve the international community as its single standing multilateral disarmament negotiating forum.”

The five recognized nuclear-weapon states (China, France, Russia, the United Kingdom, and the United States) and their allies continue to support a step-by-step process to nuclear disarmament, with negotiation of a fissile material cutoff treaty (FMCT) next in line. Others, however, such as members of the Non-Aligned Movement (NAM), have lost confidence in the step-by-step approach and seek instead to jump-start negotiations on nuclear weapons elimination.

In an effort to break the CD gridlock, the UN General Assembly First Committee in 2012 approved a resolution by Canada to establish a group of governmental experts to discuss how to advance negotiations on an FMCT. The group is scheduled to meet for two-week sessions in 2014 and 2015. After that, the group is to submit to the General Assembly in the fall of 2015 a final report with a list of recommendations on how to advance FMCT negotiations and what technical aspects to include in the treaty. Pakistan, the only state to vote against the resolution, said that the experts group “adds no value to the substance of the envisaged treaty” and would “undermine the CD, the sole multilateral negotiating forum.” (See ACT, December 2012.)

The five nuclear-weapon states have met with other nuclear-armed states in so-called P5-plus talks to discuss how to break the stalemate in the CD, but they have consistently expressed their intent to negotiate an FMCT in the CD. (See ACT, October 2011.)

In 1995, Russia, the United States, and many Western states supported opening negotiations on an FMCT, but Pakistan and other NAM members objected. Pakistan expressed concern that a ban on future fissile material production for weapons would lock in an advantage for India, its strategic rival. Pakistan’s position was only hardened by the 2005 U.S.-Indian nuclear deal, which gave New Delhi, but not Islamabad, access to Western nuclear power technology. Neither India nor Pakistan is a party to the nuclear Nonproliferation Treaty.

Frustrated by the lack of progress on an FMCT, other states are seeking to build consensus around the elimination of nuclear weapons. As part of this effort, on Sept. 26 the General Assembly held a high-level meeting on nuclear disarmament, intended to promote “collective efforts to move away from the nuclear abyss [that] have remained too modest in ambition and brought only limited success,” as Austrian President Heinz Fischer put it at the meeting. “Nuclear weapons should be stigmatized, banned, and eliminated before they abolish us,” he said.

As a follow-up, on Oct. 14 the NAM member states proposed a resolution calling for negotiations in the CD to eliminate nuclear weapons, another high-level meeting by 2018, and designation of Sept. 26 as the “international day for the total elimination of nuclear weapons.”

Austria led efforts last fall to create an open-ended working group in Geneva to discuss nuclear disarmament alongside the CD, but with more states involved and without the CD’s requirement for consensus. The group met this spring and summer, producing a report to the UN General Assembly. In response, the CD established its own alternative forum, known as the informal working group, in August. (See ACT, September 2013.)

In addition, outside the UN process there will be a second international meeting on the humanitarian consequences of nuclear weapons use in February in Nayarit, Mexico. The first such conference was in Oslo in March. The nuclear-weapon states did not attend the first session and issued a Sept. 26 joint statement regretting that “energy is being directed toward” initiatives such as the high-level meeting and humanitarian consequences campaign instead of the FMCT.

As the step-by-step approach to nuclear disarmament loses steam, support is building at the United Nations to move directly to the elimination of nuclear weapons, but finding consensus remains difficult.


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