The following is a guest post by Jenny Nielsen from the Vienna Center for Disarmament and Nonproliferation.
Three sessions of the Open-ended Working Group (OEWG) to take forward multilateral nuclear disarmament negotiations plenary meetings were held at the UN in Geneva in February, May and August 2016. The OEWG, established through a Dec 2015 UNGA resolution, was tasked with addressing ‘concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons’; and ‘substantively address recommendations on other measures that could contribute to taking forward multilateral nuclear disarmament negotiations, including but not limited to:
- transparency measures related to the risks associated with existing nuclear weapons;
- measures to reduce and eliminate the risk of accidental, mistaken, unauthorized or intentional nuclear weapon detonations; and
- additional 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.’
None of the nine nuclear weapons possessors participated in the OEWG. Many NATO states, plus Australia, Republic of Korea and Japan, did participate in the OEWG discussions. States under nuclear extended deterrence who highlight both the security and humanitarian consequences dimensions of nuclear weapons, have re-branded their posture as the “progressive approach” to a world free of nuclear weapons. These 24 states, casually renamed as the “progressive states” of the OEWG, presented and expressed support for a “progressive approach”, promoting the pragmatic building block approach to progress on nuclear disarmament, for effective measures towards achieving a world free of nuclear weapons. The “progressives” were accused during the OEWG by some NNWS as attempting to obstruct efforts for the adoption of a balanced report, but also of filibustering during the first day of the August OEWG session’s discussions.
Support for the progressive approach formally broadened from 18 in 24 as indicated by the increase in number of states co-sponsoring the two versions of the working paper outlining the progressive approach. The original 18 “progressive” states are: Australia, Belgium, Bulgaria, Canada, Estonia, Finland, Germany, Hungary, Italy, Japan, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovakia and Spain. The additional six states who joined the co-sponsorship of the working paper promoting the progressive approach are Croatia, Greece, Norway, Republic of Korea, Slovenia and Turkey.
Participants of the third session of the OEWG discussed and aimed to agree on a version of the Chair’s zero draft of the report which should reflect a balanced summary of discussions from the February and May sessions of the OEWG. The paragraphs of the Chair’s zero draft report which were contested by participants of the OEWG are paras 58 and 59 on conclusions and agreed recommendations. These paragraphs included reference to the support of a majority of states participating in the OEWG for the need ‘to elaborate concrete effective legal measures’ and to convene a conference in 2017 ‘to negotiate a legally-binding instrument to prohibit nuclear weapons, leading towards their total elimination’. At the May session of the OEWG, Ten cross-regional NNWS (Argentina, Brazil, Costa Rica, Ecuador, Guatemala, Indonesia, Malaysia, Mexico and Zambia) jointly submitted a working paper, formally proposing a 2017 conference to launch negotiations for a nuclear ban.
Following closed negotiations (to civil society)—by states participating in the August session of the OEWG—of the text of the draft report which included negotiated and compromised language, the OEWG was unable to adopt the report by consensus. In the final meeting of the OEWG, Australia called for a vote on the report as it was unable to support the text of the draft report, and would not accept a note of disassociation with the report. Australia has been singled out by civil society groups and NNWS for attempting to obstruct the adoption of the report that includes a recommendation for the launch of negotiations for a ban in 2017. The key paragraph which caused concern to Australia and the “progressive” states was paragraph 67 of the Conclusions and agreed recommendations section of the OEWG report. This paragraph, which includes compromised language—which was negotiated in attempts by participants to adopt the report by consensus—states that the OEWG ‘recommended with widespread support for the General Assembly to convene a conference in 2017…to negotiate a legally-binding instrument to prohibit nuclear weapons, leading towards their total elimination’. The language contained in this paragraph was previously negotiated and viewed as a compromise by the NNWS wishing to have a report adopted by consensus. One key term which was conceded by the NNWS and viewed as a compromised was replacing the term “majority” with the term “with widespread support”, vis-à-vis the recommendation for a 2017 conference to launch negotiations for a nuclear ban. The compromised text, however, still reflects the majority of states through the inclusion of two footnotes referencing the number of states supporting and opposing the recommendation for the 2017 conference to launch ban negotiations.
On 19 August 2016, the 103 participants of the OEWG adopted its report by a non-recorded vote with 68 in favor, 22 against and 13 abstentions. Of the 24 “progressive” states, 19 voted against the OEWG report and five abstained. The five “progressive” states who abstained in the vote were Finland, Japan, Netherlands, Norway and Portugal. These abstentions may reflect a less resolute resistance to the inclusion of the recommendation to the UNGA for a 2017 ban negotiation. The abstentions may more likely be indicative of the domestic pressure and democratic accountability these states may be subject to. Significantly, some of these states—most notably Japan and the Netherlands—may be under particular domestic scrutiny. Three states—Albania, Luxembourg and Montenegro—joined the 19 other “progressive” states in voting against the OEWG report. These votes against the report by additional states which were not part of the “progressive” movement in the OEWG, could indicate broader opposition to the recommendations to the UNGA, including the reference to the launch of ban negotiations in 2017. The voting patterns in the UNGA on a resolution for the launch of negotiations in a 2017 conference will also be useful indicators of formal support for such as process.
The OEWG report includes specific reference to possible elements of such an instrument. In paragraph 35 of the OEWG report, the following description:
Possible elements of such an instrument could include, inter alia, the following: (a) prohibitions on the acquisition, possession, stockpiling, development, testing and production of nuclear weapons; (b) prohibitions on participating in any use of nuclear weapons, including through participating in nuclear war planning, participating in the targeting of nuclear weapons and training personnel to take control of nuclear weapons; (c) prohibitions on permitting nuclear weapons in national territory, including on permitting vessels with nuclear weapons in ports and territorial seas, permitting aircraft with nuclear weapons from being entering national airspace, permitting nuclear weapons from being transited through national territory, permitting nuclear weapons from being stationed or deployed on national territory; (d) prohibitions on financing nuclear weapon activities or on providing special fissionable material to any states that do not apply IAEA comprehensive safeguards; (e) prohibitions on assisting, encouraging or inducing, directly or indirectly, any activity prohibited by the treaty; and (f) recognition of the rights of victims of the use and testing of nuclear weapons and a commitment to provide assistance to victims and to environmental remediation. It was noted that the elements and provisions to be included in such an instrument would be subject to its negotiation.
Furthermore, paragraph 36 of the OEWG report elaborates:
A legally-binding instrument prohibiting nuclear weapons would be an interim or partial step toward nuclear disarmament as it would not include measures for elimination and would instead leave measures for the irreversible, verifiable and transparent destruction of nuclear weapons as a matter for future negotiations. It would also contribute to the progressive stigmatization of nuclear weapons. States supporting such an instrument considered it to be the most viable option for immediate action as it would not need universal support for the commencement of negotiations or for its entry into force. It was suggested that the United Nations high-level international conference, to convene no later than 2018 pursuant to resolution 68/32, should review progress of these negotiations.
Whatever text and specific provisions might be negotiated by the NNWS in a 2017 conference to launch negotiations for a legal instrument, it is likely that the initial instrument will be an interim, initial set of general prohibitions and obligations which would make the possession, use and threat of use of nuclear weapons illegal. However, without the participation of NWS and nuclear weapons possessors, the negotiation of a ban would at the initial stage not include specific dismantlement schedules or verification provisions. As none of the five NPT NWS or the four nuclear weapons possessors not party to the NPT are likely to engage or participate in a 2017 conference to launch negotiations to prohibit nuclear weapons, this non-inclusive negotiation will be carried out within an enclave of like-minded NNWS. Although this de-legitimization and stigmatization of nuclear weapons through a legally-binding instrument may consolidate a norm supported by an enclave of NNWS, what impact such a normative precedent and legal instrument will have on actual nuclear weapons policy and nuclear doctrines of possessors and alliances remains an open question. It would consolidate and formalize the stigma and prohibition norm held by a majority of states, and be consistent with customary law. It would make policy options for some of the nuclear umbrella states more challenging vis-à-vis democratic accountability, particularly those under domestic scrutiny from Parliament and civil society.
Although none of the NPT NWS participated in the OEWG, a U.S. State Department official formally voiced the U.S. rejection of the OEWG report ten days later, on 29 August 2016, at a conference in Astana on “Building a Nuclear Weapon-Free World”.. The State Department official stressed that ‘the United States calls on all states to reject unrealistic efforts to ban nuclear weapons’ arguing that ‘the OEWG final report and efforts to institute a legal ban on nuclear weapons fail to take account of the international security environment and will neither lead to the elimination of nuclear weapons nor uphold the principle of undiminished security for all’. Furthermore, the U.S. State Department’s formal remarks lamented that ‘even as the United States builds upon decades of pragmatic steps to reduce the role and number of its nuclear weapons, a group of countries are pursuing a polarizing and unverifiable nuclear weapons ban treaty that could actually end up harming the proven, practical, and inclusive efforts that have achieved tangible results on disarmament and will continue to do so’. In line with the arguments presented by the “progressive” states in the OEWG, the U.S. State Department official argued that ‘we know that nuclear disarmament can only be achieved through an approach that takes into account the views and the security interests of all states’. If one is to believe the diplomatic rumor mill, it appears that NWS officials have already been attempting to persuade some of the NNWS to reconsider their stance on the launch of negotiations for a ban in 2017 ahead of the 2016 First Committee. Perhaps if the NWS had engaged in the humanitarian initiative constructively since the 2013 Oslo conference and participated in the 2016 OEWG, they might have been able to manage the path and pace of the humanitarian initiative from within. It seems the NWS are now faced with reacting to—and perhaps futilely trying to influence—the increasing momentum towards the launch of negotiations for a ban treaty in 2017. For multilateral nuclear fora wonks, the proceedings of the 2016 First Committee and the 2017 NPT PrepCom will be fascinating to observe as this state-supported formalized call for the launch of negotiations for a legal instrument to prohibit nuclear weapons continues to evolve.