The nuclear weapons ban treaty: Opportunities lost

On July 7, almost 72 years after the first atomic bomb was detonated in the New Mexico desert, 122 nations voted at the United Nations headquarters in New York to permanently ban nuclear weapons under international law. None of the nine states that possess nuclear weapons even attended the negotiations. The Netherlands was the sole NATO member to participate, and it cast the sole no vote. The ban treaty will be open for signatures from all UN member states beginning in September and will officially enter into force after 50 states have accepted it.

With not a single nuclear weapons state signing up as a member, even the treaty’s strongest proponents acknowledge that it is a largely an aspirational document designed to promote disarmament by delegitimizing nuclear weapons. “Weapons that are outlawed are increasingly seen as illegitimate, losing their political status and, along with it, the resources for their production, modernization, and retention” the International Campaign to Abolish Nuclear Weapons (ICAN) has claimed. The treaty does not really “outlaw” or make nuclear weapons “illegal” under international law, however, because any state that is not a member of the treaty is not bound by its terms. Indeed, the United States, France, and the United Kingdom issued a joint statement following the vote: “We do not intend to sign, ratify or ever become party to it. Therefore, there will be no change in the legal obligations on our countries with respect to nuclear weapons. For example, we would not accept any claim that this treaty reflects or in any way contributes to the development of customary international law.”

The treaty, however, does stand as a symbol of missed opportunities. The energy, organization, and genuine passion that eventually resulted in the ban treaty were assets that might have been used to address dangerous realities about nuclear weapons that are too often ignored: the human costs of clean-up of waste sites and production facilities and the potential for nuclear winter or other environmental effects. These issues were front and center agenda items for the “humanitarian impact” movement that spawned the treaty and in the movement’s early meetings, but these critical concerns were sidelined as the push for a nuclear ban gathered steam. All that remains of these original objectives is a short section in the treaty (Article 6) requiring parties to the convention to remediate any environmental contamination caused by the use, production, or testing of nuclear weapons and to assist people who may have suffered harm from them. But since the nuclear weapons states have not signed the treaty, they are not under pressure to address these problems.

Since nuclear weapons will be with us for many years to come, it is critical that we work now to minimize the risks they pose to humanity. Proponents of the ban treaty were right to criticize the nuclear weapons states for sometimes failing to live up to their pledge under Article VI of the Non-Proliferation 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.” But that progress has been slow because states still rely on nuclear weapons for deterrence and because it has been difficult for states to imagine a way that global nuclear disarmament could be verified and enforced. The ban treaty does nothing to address these disarmament dilemmas.

International concerns about reducing the risks of accidental or unauthorized use of nuclear weapons or to minimizing the past and future environmental impact of nuclear weapons infrastructure ought to be relatively easy to address. No country, after all, wants to suffer a nuclear accident (particularly since it would most likely occur on its own soil), or to leave their weapons vulnerable to theft or unauthorized use. Nor does any state wish to see its natural environment spoiled or the health of its citizens undermined, either by its own nuclear material or by contamination from a nuclear-armed neighbor.

There are good reasons to believe that these kinds of concerns represent the most pressing threats presented by nuclear weapons today. The United States and the Soviet Union came dangerously close to catastrophic nuclear accidents on multiple occasions during the Cold War. Although the safety of US nuclear weapons has improved in many respects, reports of serious mismanagement and lax security at nuclear sites continue. The United States spends between $5 billion and $6 billion a year on environmental restoration and waste management related to its nuclear weapons program and has paid out over $15 billion in compensation to nuclear weapons workers and “downwinders” exposed to radiation from early atmospheric tests. The total costs of the cleanup in the United States are estimated to eventually reach $347 billion—much more than the costs of producing the weapons in the first place.

All of these problems, unfortunately, are far worse in most other nuclear weapons states, where weapons safety technology, security procedures, and environmental protections lag far behind American standards. Cooperative efforts to address these problems are something that all states, both with and without nuclear weapons, should have been able to agree upon. The decision to use the momentum generated by concern for these humanitarian impacts to push instead for a divisive and ultimately ineffective ban, therefore, was a missed opening to make meaningful progress to reducing these hidden risks posed by nuclear weapons.

Proponents of the ban treaty nevertheless argue that by cementing the prohibition on nuclear weapons in international law they will intensify the stigma against nuclear weapons, discouraging new states from building them and eventually pressuring existing nuclear powers to disarm. “By stigmatizing nuclear weapons—declaring them unacceptable and immoral for all—the international community can start demanding and pressuring the nuclear-armed states and their military alliances to deliver what they’ve actually promised: a world free of nuclear weapons,” Beatrice Fihn, the executive director of ICAN, has written.

We see several serious problems with this approach.

First, the ethical and legal foundation for the treaty’s stigmatization of nuclear weapons is fundamentally flawed. The treaty explicitly notes that “any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict” since the use of such weapons would invariably violate the Geneva Convention’s “rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment.” In fact, it is conceivable that nuclear weapons could be used in a manner consistent with international law and these principles of just war doctrine. For example it is possible that, in 2001, the use of a low yield nuclear weapon against the remote, deeply buried Al Qaeda caves in Tora Bora might have met the legal criteria of necessity and proportionality. If Al Qaeda had been preparing a WMD there, as some suspected, the legal case might have been even stronger. In our opinion, using nuclear weapons in that situation would have been exceptionally imprudent—ending the 70-year old tradition of the non-use of nuclear weapons would have set a precedent that could encourage others to use nuclear weapons in less discriminating ways— but it probably would not have been illegal. Although the list of scenarios in which the use of nuclear weapons might be legal and ethical is not long, a complete ban on the possession of nuclear weapons is simply not supported by reference to existing international law.

Second, the ban is likely counterproductive when it comes to increasing compliance with existing laws of war. The United States had already been moving in recent years to help bring its nuclear doctrine in line with international law. The official US Nuclear Employment Guidance rules now state explicitly that “the United States will not intentionally target civilian populations or civilian objects” with nuclear weapons and that “all plans must be consistent with the fundamental principles of the Law of Armed Conflict” including the “principles of distinction and proportionality.” A debate (see here and here) has begun in the United States about how best to ensure that the US armed forces properly implement this guidance. The humanitarian impact movement could have focused on pressuring other states to adopt similar restrictions in targeting policies, but if possession itself is outlawed, discussions regarding the ethics and legality of nuclear use doctrine are no longer possible.

Finally, there is simply no evidence to suggest that the ban’s approach to stigmatizing nuclear weapons will be an effective path to disarmament. Research on compliance with norms and laws ranging from tax evasion and other illegal behaviors, to excessive drinking, and on to energy conservation shows that one of the strongest predictors of compliance is an individual’s belief about the probability that others in the appropriate reference group will also comply. In the case of the ban, all nuclear weapons states know that the rate of compliance among other nuclear weapons states is zero. Such a ban, therefore, might ultimately do more to undermine the gradual and step-by-step disarmament norm rather than strengthen it.

This highlights another opportunity missed by the ban movement: the opportunity to educate the public about the dangers of nuclear weapons. Public education is vital to addressing nuclear dangers because proponents of the ban may have overestimated the degree to which an anti-nuclear norm has taken root. Public opinion polls do show high levels of opposition to nuclear use and strong support for the principle of nuclear disarmament, even among nuclear states. For example, a 2008 poll of 21 countries found that majorities (or a plurality in the case of Pakistan) favored an international agreement in which “all countries with nuclear weapons would be required to eliminate them according to a timetable. All other countries would be required not to develop them. All countries … would be monitored to make sure they are following the agreement.” Seventy-seven percent of Americans, 86 percent of French, and 81 percent of Britons favored the agreement. Polls like this, however, almost never provide subjects with specific information about the scenarios in which nuclear weapons might be used or whether and how a disarmament treaty might be enforced. In the United States, where the most extensive polling on nuclear issues has been conducted, a separate poll found that only 25 percent of Americans agreed that “the total elimination of all nuclear weapons is possible,” and in another poll only six percent agreed that “nuclear weapons are morally wrong, and the United States should proceed to eliminate its arsenal whether or not others follow our lead.”

Our own public opinion research shows that significant majorities of the American public are willing to use nuclear weapons first when they are perceived as providing significant advantages over conventional weapons or when they might save large numbers of American soldiers’ lives by eliminating the need for a bloody ground war. We found similar results in a public opinion survey in India in 2015. Support for nuclear use in both countries remained high even when respondents were reminded that nuclear weapons were estimated to kill tens of thousands of civilians or more. These findings suggest that we cannot count on grassroots, mass public campaigns to pressure the governments of nuclear weapons states to disarm. Instead, we need to better educate the public about the dangers of nuclear weapons and how they might undermine rather than guarantee the safety of nations. Ironically, that was exactly what the humanitarian impact movement initially set out to do.