What participants in a nuclear weapons ban treaty (do not) want

Supporters of a ban treaty hailed the first week of negotiations as a resounding success. Indeed, the fact that more than 115 states’ representatives showed up at negotiations on a “legally binding instrument to prohibit nuclear weapons, leading towards their total elimination” has changed the international nuclear landscape. Even those who believe that a ban treaty will not contribute to international security cannot ignore the undertaking.

Still, it is less clear what kind of instrument participants would like to see agreed. On May 22, conference President Ambassador Elayne Whyte Gómez of Costa Rica presented her Draft Convention on the Prohibition of Nuclear Weapons. The 8-page paper will be subject of intense scrutiny when negotiations resume June 15-July 7 at the UN headquarters in New York.

Only then will it become apparent how much participants in the negotiations are willing to compromise. Will they pursue an accord, even if this turns out to be politically costly? Such questions will ultimately be answered only when negotiations have concluded. An analysis of statements made during the first week of negotiations allows, however, a snapshot of starting positions of participants. Based on a coding of official statements delivered during the March session of ban treaty talks, we’ve mapped the positions of participants on some key issues and briefly contrasted them with the draft convention.

Such an analysis comes with caveats. Of the 163 statements delivered, we analyzed 101, namely those that are available online at the United Nations and Reaching Critical Will websites in English, French, or Spanish. Coding necessarily implies simplification. Reading statements is insufficient for drawing conclusions about the absolute importance a government attaches to a certain topic. As is common during multilateral negotiations, states may want to keep cards close to their chests. Many delegations will be more inclined to highlight issues they want to achieve, rather than things they want to prevent.

This article therefore does not aim to chart comprehensively and in depth the positions of participants in the ban treaty talks. Rather, it aims for a comparative analysis of statements. A look at the relative importance participants attach to certain issues, compared to other topics, is indicative of where the focus of a ban treaty might be. Disagreement on specific issues can be indicative of possible fault lines in the negotiations. In general, an objection articulated at an early stage in talks is harder to reverse than a dissenting viewpoint put forward during the end game.

The setting. The talks on a ban treaty differ from many other multilateral negotiations in at least two ways. First, the bandwidth of positions is narrower than could normally be expected. None of the states fundamentally critical of or opposed to a ban treaty took part in the March session. (The exception is the Netherlands, which sent a delegation to New York after the Dutch Parliament urged the government to do so. Japan came to New York only to say goodbye and explain why it would not participate in the negotiations.)

Second, time for talks on a ban treaty is short. Negotiations are expected to be concluded in July, with a bare four weeks for actual negotiations. Proponents of a ban treaty argue that a prohibition of nuclear weapons is feasible because the international community also came together to outlaw other weapons, including weapons of mass destruction. But these undertakings took comparatively more time. Negotiations on the Biological Weapons Convention took three years (1969-1972) ; the Chemical Weapons Convention was concluded between 1984 and 1992. Even the Ottawa process took 14 months to hammer out the Anti-Personnel Mine Ban Convention (October 1996-December 1997) and the Oslo process leading to the Convention on Cluster Munitions lasted 12 months (May 2007-May 2008). Referring to the lengthy discussions on the Arms Trade Treaty, which took two years (2010-2012) to negotiate, Colombia asked “if we are acting at the right speed and in the time required” on a nuclear weapons ban.

The debate. The participation of more than 115 states is a remarkable sign of support for a ban treaty. However, only some of those countries actually contributed to the debate in March. About half of the participants (58) spoke during the first week of negotiations and only a quarter (34) took the floor more than once. About 20 percent of participants spoke during all four segments (general debate, principles and objectives, core prohibitions, institutional arrangements) of the debate. Of course, there may be many reasons why a state may decide not to speak or to take the floor only selectively. Still, the different levels of engagement are an indication that not all delegations have invested the same amount of energy in a ban treaty.

Areas of agreement: core prohibitions.

The largest degree of agreement among participants exists around the core prohibitions of a ban treaty. These are at the heart of a future accord. More than half of the delegations that took the floor stated that the treaty should ban the possession, use, acquisition, production, and deployment of nuclear weapons. Slightly less support was given to the treaty banning transfer and stockpiling of nuclear weapons. (See Table 1 in the slideshow at the top of this article.)

The conference president, Ambassador Elayne Whyte Gomez of Costa Rica, saw “a good level of convergence among the delegations, especially on the core prohibitions,” and her draft includes all of the issues mentioned above, as well as prohibitions on the development and transfer of nuclear weapons. To carve out these prohibitions, Gomez borrowed much language from Articles 1 and 2 of the Nuclear Non-Proliferation Treaty (NPT).

Areas of possible disagreement: Assistance, nuclear weapons use, sharing.

Participants in the March session voiced little support for prohibiting countries from assisting nuclear weapons states and/or nuclear weapons programs. Such assistance was described as possibly entailing financial or technological support or the “encouragement” of nuclear weapons-related activities. Some states cautioned that including “assistance” could raise tricky definitional issues and may also be difficult to monitor. Yet, the May 22 draft suggests that states parties would be obligated to never, under any circumstances, “assist, encourage, or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention” or to seek or receive such assistance.

Prohibiting the threat of use of nuclear weapons was one of the contentious issues in discussions leading up the ban treaty talks. Many NATO non-nuclear weapon states believe that a prohibition of nuclear threats “under any circumstances” would be incompatible with their alliance obligations. NATO’s defense posture is partly based on nuclear deterrence. From the perspective of Alliance members, effective deterrence must be built on credible nuclear threats. An overview of statements delivered in March indicates that the issue continues to be controversial: Less than half of the states that took the floor actively supported the inclusion of the threat of use of nuclear weapons in a future accord. The draft convention introduced by the conference president sidesteps this issue and does not mention the threat of use of nuclear weapons at all.

The role of US nuclear allies and their participation in NATO nuclear sharing arrangements was a high-profile issue in the debate ahead of ban treaty negotiations. Some treaty proponents singled out nuclear allies as “weasel states” because of their involvement in nuclear sharing arrangements. Only a handful of countries explicitly suggested that participation in nuclear planning and sharing arrangements should be outlawed by a future ban treaty. A prohibition of the modernization of nuclear forces received even less support, with only three states mentioning it. Of all the major issues raised during the debate on the scope of a ban treaty, nuclear sharing and nuclear modernization are among those that received the least support. (See Table 2 above.) The draft convention suggests that future state parties would prohibit and prevent “[a]ny stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices” on their territory but does not explicitly propose to ban nuclear sharing. It would also not curtail nuclear weapons modernization.

Area of disagreement: verification.

Participants in the March talks hold divergent views on what kind of verification and control mechanisms a future ban treaty should entail. This problem has at least two aspects, on which there was relatively little agreement among ban treaty talk participants. (See Table 3 above.)

First, there is a debate on whether and how a ban treaty should be linked to verifiable nuclear weapons reductions. A few states argued that a ban treaty should establish or contain a general framework for nuclear disarmament. Egypt, for example, proposed that the treaty text should set the “timeframes for verifiable nuclear disarmament, [including for the] … total and irreversible elimination of nuclear weapons under effective multilateral verification and control.” There are different views among participants on the related question of how a future ban treaty should deal with nuclear weapon possessors that accede to the accord. Ireland, the Philippines, and Sweden were among those that argued in favor of specifying the disarmament obligations of nuclear weapon possessors, including through provisions for the monitoring of nuclear warhead destruction. These could be elaborated in the treaty itself or in separate protocols. For example, Ireland suggested that states that “possess [nuclear weapons] who wish to accede to the new treaty will have to provide a statement of their current stockpile, as well as a proposed time-bound plan, for the removal of the weapons from operational stockpiles and their destruction.” Others, like Malaysia, argued that “as the instrument is envisaged as generally being a prohibition treaty, compliance would not have to require detailed procedures at this stage.”

The convention draft leaves the problem of how to verify nuclear weapon programs largely unresolved. It obliges all states to declare whether they have possessed nuclear weapons after December 5, 2001 (the date when Russia and the United States had fulfilled START I obligations and Belarus, Kazakhstan and Ukraine, as former Soviet Union states, had become nuclear weapons-free). If a state that answers affirmative but has eliminated its nuclear weapons before joining a ban treaty, the IAEA is supposed to verify the nuclear weapons-free status, just like it had done successfully in South Africa in the 1990s. The problem of how to deal with “any remaining nuclear weapon programmes” will have to be solved by future ban treaty member states.

Also, there appears to be no consensus on whether non-nuclear weapon states that join a ban treaty should be obliged to accept IAEA safeguards. Less than half of the delegations that took the floor in March suggested that the ban treaty should establish a connection between the IAEA verification system and the future ban treaty. A range of opinion exists on how safeguards would be applied. Some, like Sweden, suggested that a requirement to accept the Additional Protocol to IAEA Safeguards would be “cost effective and non-duplicating form of verification.” Others believe that the treaty should contain a stand-alone verification instrument, which could be “inspired from the regimes of the [International Atomic Energy Agency] and [Comprehensive Nuclear-Test-Ban Treaty Organization],” as Algeria argued.

The draft convention contains obligations for ban treaty members to accept the same full-scope safeguards that are mandatory for non-nuclear weapon states parties to the NPT—or conclude a safeguards agreement that is “equivalent in its scope and effect.” It is not clear what those equivalent arrangements might be and how they would relate to the NPT or what the role of the IAEA is.

Relationship with other international instruments.

The debate on whether to oblige ban treaty members to accept IAEA safeguards (which is a legal requirement for all non-nuclear weapon states that join the NPT) is linked to the broader, important, and controversial issue of the relationship between a ban treaty and the existing disarmament, arms control, and nonproliferation regime. Participants in the general debate agreed that a ban treaty should complement and support the NPT and that it should not establish a competing norm. But the devil is in the detail. Participants mentioned at least four existing multilateral frameworks which overlap with a future ban treaty:

• The NPT contains various obligations, including Article VI on nuclear disarmament and verification of non-nuclear weapon states through safeguards in Article III. Many states argued that duplication of existing obligations should be avoided, but only a few participants argued in favor of creating direct linkages to the NPT, for example in the preamble to a future ban treaty. The May 22 draft contains references to the NPT in its preamble. Article 19 on the convention’s “relations with other agreements” suggests merely that the accord “would not affect the rights and obligations of the States Parties under the [NPT].”
• The United Nations Charter contains a prohibition of the threat of force which would potentially overlap with the prohibition of the threat of use of nuclear weapons. Mexico stated that it would “constitute an absurdity” to include a ban on the threat of use of nuclear weapons, “since it would challenge the integrity and scope of the standard already codified” in the UN Charter. The draft convention does not mention the threat of use of nuclear weapons, but in the preamble, states parties would pledge to “contribute to the realization of the purposes and principles of the Charter of the United Nations.”
• The Comprehensive Nuclear Test Ban Treaty (CTBT) comprehensively prohibits nuclear weapon test explosions (and thus also inhibits nuclear weapons development efforts). Yet, some would also like to see testing covered by a ban treaty. Costa Rica and Cuba wanted to expand on the CTBT by including simulations and subcritical testing. These suggestions did not make it into the draft convention. The text, however, duplicates the CTBT’s core prohibitions by stating that parties would not be allowed to carry out “any nuclear weapon test explosion or any other nuclear explosion.”
• Various nuclear weapon free-zone treaties outlaw the transit of nuclear weapons through national territories on zone member states. There is broad support among participants that a ban treaty should contain similar obligations for states parties, with Mexico arguing that a “ban treaty is a global extension of the various treaties establishing nuclear-weapon-free zones.” The draft convention does not mention transit of nuclear weapons.

Out of step or one step away from a ban treaty? The big question ahead is whether the ban treaty talks can and should be finished at the next session, by July 7. The mandate of the talks calls for negotiations to be concluded “as soon as possible,” but in the world of diplomacy, soon can mean many things. On this issue, too, divergent views were apparent. For example, Switzerland argued that “haste should not be [the] guide” to negotiations, while Austria and Malaysia were among those that would like to finish talks this year.

The latter may fear that the window of opportunity for successful negotiations of a ban treaty is closing. The nuclear weapon states have been putting immense pressure on non-nuclear weapon states not to support a ban treaty. The longer the talks go on, the greater the risk that these pressures come to bear. Also, many nuclear weapon states are increasing reliance on nuclear weapons. The Trump administration has begun its nuclear posture review, which might be concluded as early as the end of this year. Against this background of a growing role for nuclear weapons in international security, skepticism about the ban treaty approach may grow.

To preempt such a loss of political momentum, some support agreement by July on a short, lean, declaratory accord that establishes the norm against nuclear weapons and their use. However, the opening week highlights at least three factors that may complicate a swift conclusion of ban treaty negotiations:

First, there is lack of a clear group structure. In multilateral talks, such political or regional groupings can facilitate agreement because they “bundle” divergent positions. Pre-negotiations often result in a middle ground which then provides a starting point for talks among the broader group of states. No such groups have emerged during the first week of negotiations. Key players from the Western Group as well as the Eastern European Group were absent, and the groups were dysfunctional. The non-aligned movement also did not deliver a joint statement. Some regional and political UN groups of member states from the global South played a role. But these joint positions often merely described the lowest common denominator among their respective member states. Such groups are therefore unlikely to be catalysts for substantive compromises among participants at large. (See Table 4.)

Second, some important participants could turn out to be spoilers. Iran played the most controversial role by, for example, trying to use rules of procedure to restrict access by NGOs. Tehran also insists that a “prohibition of nuclear weapons must be accompanied by the elimination of such weapons,” thus challenging the notion that a ban treaty be primarily a norm-setting exercise. Iran recently has complicated agreement in other multilateral arms control talks. It is feasible that Tehran might complicate agreement on a ban treaty, too.

To be sure, the fact that a two-thirds majority is sufficient to adopt a ban treaty makes it easier from a legal perspective to circumvent spoilers. But voting among like-minded states may confront ban treaty proponents with a political dilemma. The move away from the consensus rule was justified with the need to deny nuclear weapon states (and their allies) the opportunity to block agreement, by abusing the consensus rule. Using majority voting to sideline one or more self-declared proponents of a ban treaty is quite another thing.

Third, opinion leaders in the humanitarian movement appear to be out of sync on some major issues. The positions of key countries like Austria, Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa, and Sweden differ considerably, including on the key question of what a future ban treaty should prohibit. Whether and how they get their act together will be a key factor influencing when and how negotiations are concluded. (See Table 5.)

Always look on the bright side: extending talks beyond 2017. Participants in the ban treaty talks face a dilemma. Agreement on a short, lean, declaratory ban treaty by July may be feasible but possibly only at the cost of bypassing some of the more contentious issues. Such a course of action might reduce the accord’s legitimacy, if the deal in the end ignores the preferences of key participants.

On the other hand, continuing negotiations beyond July carries the risk of losing the drive behind a ban treaty. Additional practical hurdles may also surface. For example, an extension of the talks would require the UN General Assembly to approve additional funding for future meetings.

The draft convention proposed by the conference president seems to be a mix of both options. The text is relatively short but it kicks certain issues (particularly those that are verification-related) down the road and is sufficiently vague on others (such as relations with the NPT and other international instruments) to not offend anybody.

Against this background, an extension of the talks would certainly have its advantages. First, it would afford participants more time to develop a treaty that better accommodates diverging positions. Second, more thorough discussions would facilitate agreement on a treaty that “sits better” within the existing arms control, disarmament, and nonproliferation regime.

Finally, extended talks could provide an opening for states that have so far not participated. Some countries, including Germany, decided not to participate in the ban treaty talks mainly because of substantive differences over the right approach on nuclear disarmament. But there is also a concern that there would be no opportunities to influence the shape of a ban treaty because supporters appear to have “pre-cooked” the treaty text. The wide variety of views on some key issues that surfaced during the first week does not support this view.

Maybe more important, the positions of ban treaty supporters on some of the “red lines” highlighted by US allies—namely a prohibition of nuclear sharing arrangements and a ban on the threat of use of nuclear weapons (also known as “nuclear deterrence”)—are not clear-cut. The relation between a future ban treaty and the broader nonproliferation regime (and particularly the NPT), another key concern of the so-called progressive states, is not decided yet.

Put positively: Should ban treaty talks continue beyond July, it is very likely that there will be opportunities to engage on issues of importance to allies of nuclear weapon states. If participants in ban treaty talks opt for thorough and inclusive discussions of issues where consensus does not yet exist, NATO non-nuclear weapon states should take a fresh look at their decision to stand on the sidelines of negotiations. From the perspective of the states participating in the talks, the involvement of nuclear weapon-states’ allies could increase the ban treaty’s political significance and legitimacy. It would also be a blow to nuclear weapon states.