Can a treaty banning nuclear weapons speed their abolition?

The golden age of deterrence has reached its end. Nuclear weapons, once a star player on the international stage, no longer enjoy a place in the limelight.

To be sure, some policy makers still ascribe to nuclear weapons the same prestige that, during the Cold War, they gained because of their unmatched destructive power and the leverage they provided nuclear weapon states in the international arena. But the Cold War environment, in which nuclear weapons in the hands of two superpowers played a vital role in maintaining strategic stability, doesn’t exist anymore. Nor is it likely to be replicated in the future—despite certain parallels between US-Soviet relations during the Cold War and present-day US-Russia relations. Meanwhile, it is painfully obvious that nuclear deterrence is useless against apocalyptic terrorist organizations motivated by religious extremism. If such a group acquired and used a nuclear weapon, there would be no “return address” toward which retaliation could be directed. And apocalyptic terrorists probably don’t fear destruction in the first place.

Now that the golden age of deterrence has reached its end, banning nuclear weapons has become achievable—as long as the values that policy makers ascribe to them can be undermined. Now is the time to strip away the handsome mask that hid nuclear weapons’ ugly face throughout the Cold War. It’s time for the world to treat nuclear weapons just like chemical and biological weapons—those other weapons of mass destruction—as mere slaughtering weapons, undeserving of prestige. It is time to ban nuclear weapons—just as biological and chemical weapons were banned through the Biological and Toxin Weapons Convention and the Chemical Weapons Convention.

Why now. Throughout history, weapons have been invented for various reasons, but mainly to kill the enemy. If a weapon exists, sooner or later it will be used—especially if factors that might diminish the probability of its use, such as peace treaties, stable political environments, rational leadership, and deterrence capabilities—have weakened or disappeared.

In today’s world and in the foreseeable future, can we count on rational political leadership to maintain a stable international environment in which nuclear weapons will not be used? It is difficult to answer “yes.” The only reliable way to prevent nuclear catastrophe is to ban production of these weapons and eliminate them for good. Indeed, given the increasing ability of many states and non-state actors to master the scientific knowledge and technological skills necessary to build nuclear explosive devices, whether crude or sophisticated, the world will become dramatically less safe if nuclear weapons aren’t eliminated soon. The existing disarmament and nonproliferation structure hasn’t achieved disarmament yet and seems unlikely to do so in the foreseeable future. Thus the ban treaty.

What to include. The question then becomes what a ban treaty should entail. First and foremost, it should ensure that states adhering to it enjoy the same rights to peaceful uses of nuclear energy as are currently enjoyed by non-nuclear weapon states under the Nuclear Non-Proliferation Treaty (NPT). That is, the basic bargain that attracted many states to the NPT—foregoing the option to build nuclear weapons in exchange for assistance in the peaceful applications of nuclear energy—should be enshrined in the new treaty. The International Atomic Energy Agency (IAEA) should continue its responsibility for assisting states in their nuclear power undertakings.

Second, the ban treaty should establish an effective verification mechanism—but probably not the IAEA as currently constituted. Given that the nuclear weapon states will one day have to join the ban treaty if it’s to be successful, the treaty’s verification mechanisms can’t be dominated by nuclear weapon states, as the agency is dominated today. The Organisation for the Prohibition of Chemical Weapons (OPCW) might represent a more useful template. The OPCW has thus far carried out its work toward eliminating chemical weapons in a fair, timely, and effective way.

Third, a ban treaty will transform the entire world into a nuclear-weapon-free zone once it becomes universal. Existing zones’ provisions should therefore be a source of inspiration to the treaty’s drafters, especially in terms of rights and responsibilities.

Reasons for optimism. A ban treaty’s chances of achieving disarmament would be no worse than the NPT’s chances—maybe better. One factor in the ban treaty’s favor is that no country can perceive a legitimate threat from it. The non-nuclear weapon states today don’t perceive any threat from the NPT—and if the ban treaty is ever universalized, every state will be a non-nuclear weapon state. No nation will be capable of bullying its neighbors with threats of using nuclear weapons.

Another helpful factor is that the ban treaty movement can build on the existing disarmament regime, in which all but four countries—Israel, India, Pakistan, and North Korea—already participate. Of those four, India and Pakistan abstained in the October voting on the ban treaty. Their abstentions must be considered positive signs for a ban treaty’s prospects for achieving total disarmament. China, meanwhile, abstained as well. This can be read as a statement that Beijing is unafraid of a world without nuclear weapons even though it has the privilege of official nuclear weapon status.

Another interesting abstention is that of the Netherlands, a member of NATO—every other member of which voted against the resolution. The Netherlands is also one of five European countries that, as part of NATO’s nuclear burden-sharing agreement, host tactical nuclear weapons belonging to the United States. Perhaps the Netherlands’ abstention represents a chink in the armor that the United States and several other nuclear-armed countries have established to protect their nuclear weapons from the ban treaty initiative.

Would a ban treaty be sufficient to eliminate nuclear weapons? Well, given that the treaty initiative is not embraced by the nations that possess most of the global nuclear inventory, one could argue that it will prove to be an unsuccessful endeavor. But this would be a shortsighted take. The ban may not end the reign of nuclear weapons on its own, nor do so in the foreseeable future, but it can be expected to create a universal stigma around nuclear weapons—signifying the beginning of the end. It would not be a surprise if, decades from now, the ban treaty is regarded as the foundation of a world free of nuclear weapons.

When the UN First Committee voted in October to initiate conferences at which a treaty banning nuclear weapons would be negotiated, a country such as Ukraine might have been expected to vote in favor. At the end of the Cold War, after all, Ukraine had inherited the world’s third-largest arsenal of nuclear weapons from the Soviet Union—but Kiev gave them up. Ukraine also joined the Nuclear Non-Proliferation Treaty (NPT) as a non-nuclear weapon state, and it remains a treaty member in good standing. Moreover, Ukraine is threatened to its east by one of the world’s two largest nuclear powers—and does not benefit from the nuclear deterrence capacity of the other. So Ukraine voted in favor of banning the Bomb—right?

Wrong. Well over 100 nations voted in favor of a ban treaty. Thirty-eight voted against—mainly nuclear weapon states, plus EU and NATO nations allied with the United States. Sixteen abstained. Ukraine, meanwhile, did not cast a vote—which can be considered a softer form of abstention.

Has Ukraine given up on disarmament? Does Kiev harbor plans to acquire its own nuclear deterrent? Has Ukraine lost faith in international agreements?

In 1994, when Ukraine gave up its nuclear weapons, Russia, the United States, and other powers signed the Budapest memorandum, an agreement that was supposed to protect Ukraine from nuclear attack (a point often emphasized by Russia) and also safeguard its territorial integrity (a point not emphasized by Russia). Since the events of 2014, when Russia annexed Crimea and the war in the Donbas region of eastern Ukraine began, the Budapest memorandum has turned out to be of little value. These events have marked a watershed in Ukrainian attitudes toward the power of international agreements.

Until 2014, Ukraine believed that the Budapest memorandum constituted a strong security asset. Ukraine’s 2012 Military Doctrine (link in Ukrainian) asserted that deterrence was a matter for “the UN Security Council and… states guarantors of Ukraine’s security according to the Budapest memorandum.” But in 2015, the Ukrainian president’s address to parliament (link in Ukrainian) sounded completely different—the speech mentioned that Ukraine’s experience “made it evident that giving up nuclear status in an international agreement… in reality gives no actual security guarantees.” Indeed, the country that attacked Ukraine in 2014 was among Kiev’s security guarantors under the Budapest memorandum; not only that, Russia issued nuclear threats to prevent other nations from offering Ukraine military support.

So has Ukraine lost faith in the non-nuclear option and replaced it with faith in nuclear deterrence? Some evidence points in that direction. In 2014, a bill to withdraw from the NPT was introduced in the Ukrainian parliament; another bill would have led Ukraine to develop nuclear weapons. Also in 2014, a public opinion poll showed that 49 percent of respondents believed that Ukraine should restore its status as a nuclear weapon state (link in Russian).

Still, there is no serious concern among Ukrainian experts that the nation will go nuclear. Partly this is because, even among members of the general public who think Kiev should develop nuclear weapons, only a small percentage believe it will actually do so (link in Ukrainian). Nonetheless, a certain skepticism about disarmament can be seen in Ukraine today, for instance in a strengthening of NATO aspirations—the percentage of Ukrainians favoring NATO membership increased to 78 percent in 2016 from 15 percent three years earlier (link in Ukrainian). Ukrainians tend to view NATO’s extended deterrence capacity as quite credible. Ukraine is not a NATO member, of course, and can’t take advantage of the organization’s Article V provisions for collective defense (though the government has officially proclaimed NATO membership as a political intention).

Kiev’s abstention on the nuclear weapon ban treaty can be characterized as an expression of solidarity with the US nuclear umbrella, a solidarity that most NATO members demonstrated as well. For Ukraine, US extended deterrence presents an illusion that hasn’t been broken yet, unlike the Budapest memorandum. By abstaining, Ukraine might also have meant to remind the world that extended deterrence functions as a nonproliferation incentive. To be sure, this sort of thinking proceeds from a sort of neo-realist paradigm, which is perhaps regrettable, but the events of 2014 prove that it’s quite difficult to avoid such a worldview when your neighbor actively practices it.

Ukraine may have abstained on the ban treaty, but among its political aims is drafting a global treaty providing guarantees that states with nuclear weapons won’t use them against states without them. Such guarantees should be provided within the framework of the NPT—a mechanism that has proved itself relatively effective since 1968. The treaty doesn’t work perfectly, but it generally upholds the values and interests of member states regarding nuclear energy, global security, and extended deterrence. Can it be improved? Yes, but perhaps this is precisely why Ukraine wishes to draft a treaty regarding security guarantees within the NPT structure.

A ban treaty, on the other hand, is likely to exist outside the NPT structure. With 38 nations voting against the proposed treaty, it seems clear that the world is still not ready for a complete ban on nuclear weapons. Even though all nations may support the idea of avoiding destructive global wars, two separate camps see the struggle for global peace from two different angles.

The NPT, no matter its faults, takes into account both points of view; the proposed treaty would fail to do that. Some states would outlaw nuclear weapons, others would not. The treaty might come to resemble the Kellogg-Briand Pact—a 1928 agreement to outlaw war—to which everyone agreed but which no one took seriously. Then again, the new treaty might turn out to have real power, and strip the credentials from the NPT. But if the new treaty turns out to be more moral and less unequal than the NPT, will the latter treaty stand up to this challenge or will it gradually erode? If it erodes, what will be the response of nations that consider nuclear weapons a matter of national pride, greatness, and sovereignty? How will nations afraid of attack by powerful neighbors respond? Mightn’t the new treaty create a truly Hobbesian nightmare in which everyone fights everyone, using all possible weapons? What happens when the old rules are abandoned but the new ones aren’t accepted by several dozen states?

If the new treaty fails to abolish nuclear weapons and weakens the NPT without effectively replacing it, the dangers for the global nuclear order could be grave.

It is time for the next big building block in the process toward universal denuclearization—a treaty that outlaws nuclear weapons.

The first major building block in the effort to establish and maintain a world without nuclear weapons was the Nuclear Non-Proliferation Treaty (NPT), which entered into force in 1970. A third building block would be a nuclear weapons convention outlining the timelines, technicalities, and verification mechanisms involved in eliminating nuclear weapons.

This gives an idea what the ban treaty—the second of three major building blocks—would contain, and why it is necessary. But why is now the time?

One answer is that many non-nuclear weapon states have grown impatient with disarmament’s slow pace. But the current nationalist turn in global politics—as reflected in the United Kingdom’s vote to exit the European Union and the election of Donald Trump as US president—has provided fresh urgency to the ban treaty initiative. Today, the nuclear taboo that has developed since atom bombs were used against Japan in 1945 seems under threat.

The nuclear taboo prevents nuclear weapons from being used; non-use in turn reinforces the taboo. Indeed, a norm such as the taboo evolves over time as some action, informed by ideas of what is appropriate, right, moral, and sensible, is or is not performed. Each time nuclear weapons could conceivably be used in conflict but, because using them is deemed an inappropriate response to a situation and contradictory to the values of a society (whether domestic or international), the taboo strengthens. In today’s nationalist environment, careless statements could reignite in imaginations the notion that nuclear weapons are usable.

The ban treaty should elevate the nuclear taboo to the level of an absolute—using a nuclear weapon must become unthinkable. The ban must close the loophole left by the International Court of Justice in 1996 when it ruled on the legality of using nuclear weapons. The Court determined that it could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.” The ban must make it clear that there can be no situation conceivable that justifies use of nuclear weapons or even the threat of their use. As such, the ban is an instrument to reach an endgame in which non-use of nuclear weapons becomes what in law is termed jus cogens—a peremptory norm or compelling law that is simply assumed, and that cannot be derogated from—by anyone, ever.

But considering specific cases of human conduct (such as nuclear weapon use) through the lens of jus cogens requires political work. The nuclear taboo, to be peremptory, must be accepted and recognized as peremptory by the international community at large. The ban treaty, then, is an instrument to disrupt the comfort of those who still believe that deterrence logic (or mutual assured destruction) provides a security rationale for nuclear weapons. In place of deterrence logic, the ban establishes the notion that security is found in the logic of mutual assured abstinence from the nuclear option.

Odious creatures. A conference to negotiate a ban treaty is imminent because of the combined political work that states and non-state actors have already performed; this political work is known as the humanitarian initiative. The humanitarian initiative has shifted the focus of nuclear prohibition from actors to technology. The NPT, despite its tremendous success in containing nuclear weapons, focuses on actors—those with and those without nuclear weapons. Under the treaty, all states are obliged to negotiate general and complete disarmament in good faith, but no deadline for such negotiations is stipulated. This legal gap has been disingenuously used as a means for allowing nuclear weapons to stay in the “right” hands and for keeping them out of the “wrong” hands. A ban treaty, on the other hand, would deem all nuclear weapons inhumane. Even in perceived “good” hands, they would still be illegitimate.

A ban treaty can function at a normative level to stigmatize nuclear weapons for everyone and therefore stigmatize nations that retain these weapons—even if they haven’t signed on to the ban treaty. In the public eye, states that possess nuclear weapons must come to be seen (and their defenders must come to feel) like Gollum, the odious creature in J.R.R. Tolkien’s book The Lord of the Rings, who says: “We wants it, we needs it. Must have the precious.” The ban will be an important legal instrument to be sure, but more than that, it will be a political instrument around which activists—whether states, individuals, or civil society—can do further political work to create the common sense that possessing nuclear weapons is immoral and irrational.

Creating reality. So what should a ban treaty actually include? One clue comes from the experience of my own nation of South Africa, which once had nuclear weapons but gave them up. South Africa took the moral high ground when it denuclearized in 1990, and any other nuclear-armed state that became nuclear-free would do the same. Giving up nuclear weapons is an achievement to be celebrated by the international community, and a ban treaty should include positive language to entice denuclearization.

In addition, the ban treaty might declare in its preamble that member states are “eager to see possessor states lead in the effort to attain and maintain a world without nuclear weapons by initiating negotiations on a nuclear weapons convention.” A further declaration might recognize “a special role for the permanent members of the United Nations Security Council, the organization primarily responsible for international peace and security, in leading denuclearization by example.”

The treaty should not be crowded with too much detail. Nor should new institutions be created at this point—that would be the prerogative of a convention. Much of the verification work associated with the ban can be subsumed under existing structures such as the International Atomic Energy Agency.

As an interim measure toward a nuclear weapons convention, the ban itself should be an easy but big step. It can speed up disarmament. But it is not a direct instrument to force nuclear-armed nations to disarm. Rather, it is an element of a long-term project to construct a reality in which nuclear weapons have no place and nuclear-armed nations themselves come to see reality in that light.