Disarmament Insight


Monday, 2 June 2014

Nuclear disarmament: CD informal meeting (2)

The work plan developed by Ambassador Dr Walid M Abdelnasser of Egypt, the Coordinator of the Conference on Disarmament’s informal meetings on nuclear disarmament, raised for discussion some legal elements and approaches for achieving nuclear disarmament. On 22 May 2014, UNIDIR was asked to present a paper to the CD on that topic.  The paper was not a complete survey, but merely a sample of relevant initiatives, proposals and papers. The first part of the paper appears in an earlier posting on this site. The second and penultimate part of the presentation included these remarks: 

Approaches on how to achieve nuclear disarmament 

These can be categorised as follows:
a)        the legal vehicle or vehicles or means of achieving nuclear disarmament;
b)        a mixture - that is, a legally binding process describing agreed stages by which nuclear disarmament would be achieved and prescribing the legal form of them; and
c)         descriptions of possible processes for making progress in the interim towards the initiation of legally binding processes for achieving nuclear disarmament.

a)        The legal vehicle or vehicles or means of achieving nuclear disarmament
Under this heading, the most commonly mentioned treaty-based approaches are:
(i)        A comprehensive Nuclear Weapons Convention, an example of which is the model Nuclear Weapons Convention tabled in the UNGA by Costa Rica and Malaysia (A/C.1/52/7), discussed in the CD, Open-ended Working Group (OEWG) and in the NPT.  The Convention would prescribe prohibitions and general obligations for effecting a time-bound, irreversible and verifiable nuclear disarmament treaty, complementing the Biological and Toxin Weapons and Chemical Weapons Conventions. This approach more or less seeks to achieve the elimination of nuclear weapons in a single, legally binding step, although it would supplement existing treaties such as the NPT and CTBT (when in force).  And while it would encapsulate nuclear disarmament in a single treaty it nonetheless entails a staged approach for elimination over five, time bound phases. Negotiating a comprehensive nuclear disarmament regime in one instrument would clearly be ambitious and complex, and its critics prefer to tackle the phases in separate legal instruments.
(ii)       A Convention Prohibiting the Use of Nuclear Weapons. In 1961, the UN General Assembly adopted Resolution 1653 declaring the use of nuclear weapons “a crime against mankind and civilization”. A Convention on the Prohibition of Use of Nuclear Weapons was proposed by India originally in 1978 and in a UNGA resolution in 1982 and in the CD (CD/1816) in 2007.  India argued that reducing the salience of nuclear weapons in strategic and security doctrines and policies was essential for realizing the goal of complete elimination of nuclear weapons. Alignment of nuclear doctrines to a posture of ‘no-first-use’ and non-use against non-nuclear-weapon states by all nuclear weapon states would, in India’s view, be an important step towards achieving that objective.  Critics of an approach that would only prohibit use argue that, on its own, it would still leave nuclear weapons in the hands of existing possessors unless it was coupled with binding commitments leading to time bound elimination. There is also the question, raised by the ICJ in its 1996 Advisory Opinion, as to whether use in self-defence would be outlawed by a prohibition on use.
(iii)     No First Use Convention. This approach envisages a binding legal commitment by nuclear-armed states that they would never, under any circumstances, be the first to use nuclear weapons. The International Commission on Nuclear Non-proliferation and Disarmament said that it was clear from the soundings they had taken that international civil society organizations were unlikely to be enthusiastic about a treaty “which (even if ‘no first use’ is acknowledged as a useful station on the way to zero) is not itself premised on the elimination of nuclear weapons” (www.icnnd.org).
(iv)      A Nuclear Weapons Ban Convention. Such a treaty would set out the prohibitions required for the pursuit, achievement and maintenance of a world free of nuclear weapons. It would prohibit the parties from engaging in any activity related to the use, development, production, stockpiling, acquisition, deployment, transfer or financing of nuclear weapons. This approach might explicitly or tacitly recognise that further legally binding steps would be needed to secure the elimination of nuclear arsenals. Detractors of this approach argue that it would be sustainable only if the nuclear weapons possessing states participated and became party to the resulting treaty. On the other hand, the case against proliferation of nuclear weapons – supported strongly by all countries including nuclear weapon states - rests heavily on their prohibition.  The recent paper of NGOs Reaching Critical Will and Article 36 on a legal framework for the prohibition and elimination of nuclear weapons explores these issues further.

b)        A framework - that is, a legally binding process describing agreed stages by which nuclear disarmament would be achieved.
An interim step, pending the negotiation of an agreement of the kinds just outlined, would be to negotiate a legally binding framework under which nuclear disarmament would be achieved on a serial basis through completing the various stages set out in that framework – that it, a treaty-based recipe for the route to eventual elimination. Examples are the Convention on Conventional Weapons with its 5 Protocols and the Geneva Conventions on the law of armed conflict with their Additional Protocols.
In his 5-point plan for nuclear disarmament, the UN Secretary-General described that approach as “a framework of separate, mutually reinforcing instruments”.  Recently, this point was expanded slightly in a paper tabled in the NPT by the New Agenda Coalition. That paper envisaged a step-by-step or building blocks approach within “clearly identified elements including a number of free standing instruments or treaties dealing with specific aspects of nuclear disarmament”.
In these examples, use of the word “instruments” could conceivably be interpreted flexibly to include non-legally binding frameworks. If so, it might be a matter for discussion in this Conference as to whether a framework covering something as complex and necessarily lengthy as the sequence of agreements leading ultimately to the elimination of nuclear weapons can be left to a non-binding arrangement.  On the other hand, the development of a framework without determining at the outset whether it was to be legally binding might be a useful confidence building measure, offering a new perspective to the CD deadlock over some of the individual components of a framework such as a Fissile Material Treaty, Negative Security Assurances and nuclear disarmament in general.

c)         Descriptions of possible processes for making progress on or achieving nuclear disarmament.
(i)        Sequential stages towards elimination.
There is not time or space here to list all the proposals, processes or means of making progress on nuclear disarmament favoured by states and groups of states.  Some of them are inherent in legally binding approaches just described.  The most commonly voiced involve the idea of sequential stages towards elimination.  These include general descriptions such as building blocks, step-by-step or phased approaches. In reality, such descriptions do not - on their own - take us very far.  Not only are the next steps deadlocked or unavailing (e.g., programme of work in the CD, entry into force of the CTBT), but also it is axiomatic that in something as complex politically and technically as the verifiable elimination of nuclear weapons a series of measures is inescapable. A challenge for those advocating a step-by-step or building blocks or phased approach is to articulate clearly the actual steps or blocks or phases and their sequence.
(ii)       Additional specific proposals or possible approaches. 
- Timebound: A Programme of Action was tabled in the CD by the Group of 21 in August 1996 calling for negotiations on a phased programme of nuclear disarmament for the eventual elimination of nuclear weapons with a specified time frame as soon as the CTBT negotiations were concluded.
- Venue for negotiations: In 1998 South Africa proposed that the CD establish an ad hoc committee on nuclear disarmament to deliberate upon practical steps for systematic and progressive efforts to eliminate nuclear weapons as well as to identify if and when one or more such steps should be the subject of negotiations in the Conference.  That same year Canada proposed that the CD establish such a committee with a view to identifying if and when one or more nuclear disarmament issues might be negotiated multilaterally.
- “Effective measures”: The New Agenda Coalition recently tabled a paper in the NPT with a number of options for the development of “effective measures” drawing on the wording of article VI of the NPT. One of those options, as already mentioned, is a framework arrangement of mutually supporting instruments aimed at achieving and maintaining a world free of nuclear weapons.
- NWFZs: Another approach sometimes pondered in the margins might be to develop and expand nuclear weapon free zones, perhaps through focusing first on similarities amongst existing zones and then by exploring scope for synergies amongst them.
- And lastly among this small sample of approaches are action plans: In the case of the NPT, there are the 13 steps of the 2000 Review Conference, reiterated (though modified) in the more comprehensive 2010 action plan.

A third part of this paper, a brief mention of several rationales for nuclear disarmament together with a summary of the paper as a whole, will be the subject of a third and final posting.

Tim Caughley, Resident Senior Fellow, UNIDIR