From Norm to Enforcement: The Nuclear Ban Needs a Boost

Stimson Spotlight

By Cindy Vestergaard

On July 7, 2017, almost 71 years since the first resolution adopted by the U.N. General Assembly forwarded the objective of “the elimination from national armaments of atomic weapons,” a draft treaty banning nuclear weapons has been approved. The Treaty on the Prohibition of Nuclear Weapons will open for signature on September 20, 2017 and will enter into force 90 days after the 50th state has ratified the treaty.

Its prohibitions are historic, banning the development, use, manufacture, testing, possession, acquisition, transfer, and stationing of nuclear weapons. The strength of the ten-page text is its grounding in humanitarian law, including preambular language related to the environment, food security and global economy, even reference to “age- and gender-sensitive assistance” in the provision on victim assistance and environmental remediation. It underscores the moral imperative of eliminating nuclear weapons, setting the diplomatic stage for an international norm delegitimizing their use as a security guarantee; its weakness is in backing up that norm and verifying elimination.

One would expect that a treaty banning nuclear weapons would have measures to rival that of the 181-page Chemical Weapons Convention (CWC), still the world’s first and only verifiable disarmament treaty. The CWC’s 181 pages include a preamble, 24 articles, three annexes (Annex on Chemicals, Verification Annex, and Confidentiality Annex), and established the Organisation for the Prohibition of Chemical Weapons (OPCW) to implement its provisions. These annexes give the treaty its heft, defining chemicals and categorizing them by their toxicity and historical weaponization; providing third-party verification of the destruction of chemical weapons (CW) and inspection of CW facilities and dual-use commercial entities with the provision for “anytime, anywhere” challenge inspections; and setting out the principles and measures for handling confidential information and sensitive installations. A major global undertaking, the CWC took nearly 24 years to negotiate.

In comparison, negotiations for the draft nuclear ban treaty took four weeks (one week in March and three weeks in June and July of 2017). Its ten pages contain no definitions, no annexes, and creates no implementing body. The treaty does reference safeguards administered by the International Atomic Energy Agency (IAEA) -- specifically, comprehensive safeguards implemented pursuant to the Nuclear Nonproliferation Treaty (NPT), which monitor compliance of states foregoing nuclear weapons (including those disarming and joining nuclear weapons-free) under the NPT -- but does not create a body to verify the complete elimination of nuclear weapons. There is reference to a “competent international authority or authorities to negotiate and verify the irreversible elimination of nuclear-weapons.” When such an authority will be designated is anyone’s guess; although if not identified before the treaty’s entry into force, it will be up to the U.N. Secretary-General to “convene an extraordinary meeting of States Parties to take any decisions that may be required.”

The pitfalls in leaving verification until after the fact will be the biggest obstacles moving ahead. Here, the Biological and Toxin Weapons Convention (BTWC) offers a cautionary tale. Entering into force in 1975, the BTWC contained no means for monitoring or verifying the prohibition and elimination of biological weapons. States parties attempted to rectify this in the 1990s, but negotiations on a verification protocol failed to reach consensus in 2001, leading not only to the end of protocol negotiations, but to any mention of the “V” word. A series of annual intersessional meetings alongside an active civil society have kept the treaty on life support, but the stalemate continues. Divergent views persist between states still wanting to pursue a comprehensive, legally binding verification regime versus those preferring incremental steps. This has left the treaty weakened as witnessed in the Final Document of the 2016 BTWC Review Conference, which represents the minimum for maintaining annual discussions between States Parties and keeping the lights on for the three-person Implementation Support Unit, the BTWC’s ten-year old administrative unit.

The involvement of industry will be crucial to establishing a verification mechanism for the nuclear ban treaty. Absent at the BTWC negotiations, industry, alongside possessors of chemical weapons and NGOs, participated at the CWC’s negotiations. Their participation heavily influenced the CWC’s annexes with interaction amongst industry associations and governments, leading to over 60 national (some multinational) trial inspections on chemical facilities held from 1988 to 1992 and demonstrating that intrusive inspection procedures need not compromise commercial confidentiality. In turn, industry became a persistent and loud national and international lobby group for CWC ratification with various members of Congress claiming industry as a key reason for their support of CWC ratification in the United States. Although there are still some holdouts, today the Convention has a nearly universal membership of 192 States with 94 percent of declared stockpiles destroyed.

To ensure the nuclear ban does not suffer a paralysis similar to the BTWC, it will be incumbent on the treaty’s supporters to engage all stakeholders and study what verification should look like under an enforceable ban. The preference should be to have this formalized before the treaty enters into force, as possessors are more likely to sign up when they know the verification measures that will apply. This will not be easy, given a number of the ban’s supporters will want the treaty to be formalized quickly, coupled with the absence of states possessing nuclear weapons and those falling under their “nuclear umbrella” at the negotiations (except the Netherlands, which voted against the draft). For those who were at the table, only eight states have nuclear energy programs (another 18 have research reactors) and only one -- South Africa -- has experience in both developing and destroying a nuclear arsenal.

To have the desired impact, disarmament norms have to be demonstrable, verifiable and enforceable. The only way to chip away at the reservations held by critics – and pushing possessors and umbrella states to join the discussions – will be to involve industry and beef up the ban’s scientific and technical grounding. Patience, study, and tireless diplomacy will be needed in the years and decades ahead. The moral imperative alone will not be enough to toss nuclear weapons into the dustbin of history.

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Cindy Vestergaard is a Senior Associate and Director of the Nuclear Safeguards program at the Stimson Center.

Photo credit: Xanthe Hall via Flickr.