A controversial ban and the long game to delegitimize nuclear weapons

Sometimes it pays to be in the room when your future is being negotiated, even if it includes a ban on your favorite weapons. This is what nuclear weapon states and their allies may find out by the end of this year or early in the next, when the nuclear weapons ban treaty approved in New York on July 7 is likely to enter into force.

Beginning in September, the treaty will open for signature, and the 50 states required for its entry into force are likely to sign up quickly. After all, 122 countries approved the text after a mere three weeks of debate, in which the nuclear weapons countries did not participate. In the wake of the treaty’s adoption, the United States, the United Kingdom, and France have declared they will never, ever sign, ratify, or adhere to it. None of the other nuclear weapon holders—Russia, China, North Korea, India, Pakistan, or Israel—or the states that rely on US nuclear weapons (NATO members, South Korea, Japan) had anything good to say about the treaty. Although the Dutch attended the negotiations, they cast the single negative vote; Singapore abstained.

Supporters apparently are not deterred by the prospect that the treaty may be ignored by the countries that possess all the world’s nuclear weapons. After all, 70 years of hollow promises of nuclear disarmament have accustomed them to play the long game. They are gambling that the new treaty will lead to the erosion of legitimacy for nuclear weapons.

Contrary to all expectations, negotiators managed to avoid the worst pitfalls anticipated for the treaty. Before the talks, nuclear weapon states argued that a treaty would do more harm than good, eroding existing obligations within the nuclear disarmament and nonproliferation regime. They envisioned scenarios in which countries would join the ban, and either ignore the Nuclear Non-Proliferation Treaty (NPT) or even withdraw from it. The approved text, however, explicitly calls for non-nuclear weapon states to adhere to their NPT safeguards obligations.

At the same time, the ban treaty does not allow nuclear weapon states off the hook (should they join) by assuming that their current voluntary safeguards agreements could work in a future nuclear-weapons-free world. Once their nuclear-weapons-free status is confirmed, they will be subject to the same rules and inspections that govern non-nuclear-weapon states now.

The treaty specifically calls upon the International Atomic Energy Agency (IAEA) to handle compliance for states without nuclear weapons, but it did not assign the IAEA the primary role in verifying the elimination of nuclear weapons and the irreversible conversion of nuclear weapons-related facilities in those countries that now have nuclear weapons. Instead, this role was given to a vaguely mysterious “competent international authority.” One imagines that the next 10 years could be spent figuring out how to set up such an authority to be competent without revealing security information that countries consider highly confidential. (A first task should be to jettison the unfortunate acronym CIA.)

Like the NPT, this treaty leaves some contentious issues off the table. The text contains no definitions and, apparently, no restrictions on research. If, in fact, a competent international authority is established with responsibility for verifying the elimination of nuclear weapons, it might be called upon to verify, ex-post-facto, elimination, with very little data from which to draw its conclusions. This is because states with nuclear weapons can eliminate them first and then join the treaty. One can already see how Kim Jong Un could announce he no longer has nuclear weapons and then spend the next 20 years playing a game of “whack-a-mole” with competent international authority inspectors.

Another serious issue the treaty chose to ignore is whether safeguards as currently applied to fissile material production plants (that is, uranium enrichment and spent fuel reprocessing facilities) would be sufficient in a nuclear-weapons-free world. After all, when all states have zero nuclear weapons, the consequences of breakout are much greater. Two years ago, the Iran nuclear deal demonstrated that existing IAEA safeguards were not really considered sufficient to provide confidence in Iran’s intentions. Would even the strict measures adopted under the Joint Comprehensive Plan of Action for Iran provide enough confidence in compliance in a nuclear-weapons-free future? The treaty doesn’t foreclose the option of improving monitoring measures for enrichment and reprocessing plants. But this is likely to occur only if all the nuclear weapon states join simultaneously, so they have a mutual stake in transparency that serves their security.

From the perspective of nuclear weapon states, there will be little impact on the current operations of their nuclear weapons programs unless they or their allies join the treaty. A prohibition against transit could have constrained the ability of nuclear submarines to make port calls in some states, but this prohibition is absent in the final text. The diplomatic impact of the treaty, however, should not be underestimated. The pressure is on.

There is no doubt that the ambitious treaty effort, led by Costa Rican Ambassador Elayne Whyte Gomez, has some shortcomings. But the negotiators creatively managed the worst objections well enough to set down a legal prohibition that strengthens the norm against not just the proliferation of nuclear weapons, but their continued dominance as the currency of power in the 21st century. As some nuclear weapon states have remarked, the treaty will not make the world any safer in the current circumstances. But it may mean that diplomats, having pocketed this paper victory, can now focus on creating the right environment for a norm against nuclear weapons to flourish and grow.