The Gap, the Pledge and the Ban

April 15, 2015

By Daniel Högsta, Network Coordinator of ICAN

As the Review Conference of the nuclear Non Proliferation Treaty (NPT RevCon) approaches, the Humanitarian Initiative, most recently punctuated by the success of the Vienna Conference, faces an important milestone. Through three conferences, a number of joint and individual statements at traditional disarmament forums, a re-energised civil society, and a healthy debate among interested parties (reaching beyond the disarmament community), the Humanitarian Initiative is the most exciting development in nuclear disarmament in two decades. The renewed focus on the humanitarian consequences of nuclear weapons, which has its roots in a reference in the 2010 RevCon outcome document, has the potential to strengthen and restore the credibility of the NPT by generating momentum for the develop of new legal instruments which would help to fulfil the treaty’s disarmament obligations.

The NPT, which operates on 5-year cycles, is the only treaty on nuclear weapons which contains a binding commitment for nuclear disarmament. As this year marks the end of a cycle (with almost no progress made by nuclear weapon states), governments, civil society, media outlets and research institutes are understandably puzzling over how the momentum generated by the humanitarian initiative will relate to the almost 5-decade old treaty.

In stark contrast to the stagnant “step-by-step approach”, there is a distinct buzz around the progress of the humanitarian initiative and the “pledge to fill the legal gap”, also known as the Austrian Pledge. With respect to the NPT framework in particular, the burgeoning discussion on “effective measures” is likely to be at the front of everyone’s minds, states and civil society alike, in the month to come.

The Pledge calls on all states parties to the NPT “to identify and pursue effective measures to fill the legal gap” and refers directly to the obligations contained in article VI of the treaty, “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, and on a treaty on general and complete disarmament under strict and effective international control.”

Nuclear disarmament is just one of three “pillars” of the NPT; however, it is by far the one which has suffered most from a lack of implementation, which, if allowed to persist, threatens to undermine the entire treaty. The disarmament pillar is plagued by the existence of the legal gap, which muddies the water as to the status of nuclear weapons and how states relate to their existence. Unlike the other weapons of mass destruction – chemical and biological weapons, as well as certain other weapons deemed unacceptable on the basis of their humanitarian effects, such as cluster munitions and anti-personnel mines – there is currently no international and cross-regional treaty which prohibits nuclear weapons. Many, of course, rightly regard their existence as abhorrent and their possession illegitimate, but this sentiment is not shared by all states, in particular those who claim to rely on nuclear weapons for their security.

There seems, therefore, to be three parts to this equation. First, the NPT can be said to envision additional instruments in order for the disarmament obligation to be implemented. Second, many states, international organisations, research institutions and civil society actors recognise the existence of a legal gap in the international framework, and that this gap is an obstacle to progress. And third, that means of filling the gap should be pursued and adopted without delay in order to implement the obligations of the NPT, and, in so doing, restore its credibility.

A group of states known as the New Agenda Coalition (NAC) made a significant contribution to the effective measures debate when it released a Working Paper at the 2014 PrepCom which outlined several options of “effective measures”, including a treaty banning nuclear weapons. All four of the options, which are not mutually exclusive, will be explored in further detail in an updated NAC Working Paper to be released immediately in the run-up to the RevCon. The discussion on “effective measures”, prompted in part by NAC’s working paper (which will be updated at the 2015 RevCon), will be key to gauging the appetite of states to translate the momentum generated by the humanitarian initiative into action.

Non-nuclear weapon states parties to the NPT have an important role to play in setting the nuclear disarmament agenda. With the momentum generated by the focus on the humanitarian impact, there is a clear disharmony between the shocking information that has been revealed by the three humanitarian impact conferences about the urgency of eliminating the threat posed by nuclear weapons, and the utter lack of progress made by nuclear weapon states. Despite the lip service paid to this issue by the nine nuclear weapon states (and many “nuclear umbrella” states), all are currently undertaking costly projects to renew or modernise their arsenals and some continue to make arguments defending the possession of nuclear weapons for the foreseeable future.

In this climate, the question should be: can the rest of the world afford to do nothing? Is it enough for non-nuclear weapon states to simply stand on the sidelines and criticise the nuclear weapon states? A treaty banning nuclear weapons seems the best option available, given that such a treaty could be negotiated and implemented even without the support of the nuclear weapon states. Their absence would not lessen its normative or practical impact. 

One of the most illuminating presentations at the Vienna Conference was that of Professor Nobuo Hayashi of the University of Oslo and the International Law and Policy Institute. Speaking on “the fundamental ethical and moral principles on which international legal regulations of nuclear weapons are based”, Hayashi said of the legal anomaly of nuclear weapons:

“[…] very little room is seemingly left for nuclear weapons to be used or threatened without violating at least some existing rules. Unlike biological and chemical weapons, however, the law itself does not appear to address the legality of nuclear weapons as such. It is as though we can strangulate this beast from all directions, but not quite strike directly at its heart.“

The discussions on effective measures for nuclear disarmament and the legal gap are rightly inspired by the understanding that there is a humanitarian imperative to prohibit and eliminate nuclear weapons. The Pledge to pursue effective measures to fulfil the legal gap can be seen as a maturation or an evolution of the humanitarian initiative into an action-oriented direction, which should culminate in negotiations on a new legal instrument which matches the moral and ethical rejection of nuclear weapons with a legal rejection. A clear legal rejection of nuclear weapons would be a piercing strike at the heart of the spurious justifications of the legitimacy of possessing nuclear weapons and provide a concrete platform from which progress in nuclear disarmament can be made.

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