Clearing the path to the ban

Day 4 of ban treaty negotiations

Something extraordinary happened yesterday. What started as an informal discussion of the proposals and divergent viewpoints that had emerged earlier in the week turned into a collective working session among the State and civil society participants in coming to terms with those differences. It was one of the most productive, energized, and energizing exchanges most of us have ever experienced inside a UN conference room.

A lot of the credit goes to conference president Elayne Whyte, who decided to fill an unexpected gap in the schedule with an entire day of interactive dialogue, and to the panelists she invited to provide some focus and guidance on issues that appeared to be somewhat contentious on Tuesday and Wednesday. (The panelists were Lou Maresca of the ICRC, Ray Acheson of WILPF, and John Burroughs of the Lawyers Committee on Nuclear Policy and IALANA in the morning; and Richard Moyes of Article 36, Gaukhar Mukhatzhanova of the James Martin Center for Nonproliferation Studies, and Zia Mian of Princeton University’s Program on Science and Global Security in the afternoon.)

Most everyone put aside their prepared papers and actually talked with each other about the issues that had surfaced earlier in the week.

• Is nuclear testing just an aspect of development, or are there reasons to single out testing for a separate prohibition? Can this be done in a way that does not compete with or undermine the CTBT, or require additional mechanisms for verification?
• How will the treaty address threat of use and the specific manifestation of that threat in deterrence and extended deterrence relationships? Have the UN Charter, international humanitarian law, and the 1996 ICJ advisory opinion dealt adequately with this or not? Most of the speakers made it very clear that they want the treaty to confront this issue head on and that the threat of use implicit in deterrence doctrines must be prohibited as clearly as the weapons themselves. As Zia put it, “It’s outrageous to say ‘I will not use mass murder myself, but I will allow others to use mass murder on my behalf.’ There should be no scope for such an argument.”
• How can the treaty ensure that the rights of victims of nuclear weapons use and testing are recognized and that the “lived reality” of victims, as Ray Acheson put it, is honored?
• What distinctions should be made between the kinds of measures needed to verify compliance with a disarmament agreement—the dismantlement and elimination of nuclear weapons— and those required to demonstrate that states parties are implementing prohibition norms? What kinds of future verification requirements should be built into the treaty to ease the way into accession by nuclear-armed states? Should those be spelled out in any detail, or should those details be left for later?
• What about activities that ought to be prohibited, such as the transit of nuclear weapons through territorial waters, but where implementation of the prohibition is difficult or impossible (e.g., because small states don’t have the resources or capacity to detect and prosecute violations by large states)? Should the treaty limit itself to “implementable” prohibitions, or should it simply establish the norms and accept that implementation in some cases may be harder than in others?
• What are the pathways to accession by nuclear-armed? Eliminate nuclear weapons first and then join the treaty? Join the treaty and submit a timebound, verifiable plan for elimination? Are there different pathways for individual nuclear-armed states that decide they have had enough of nuclear weapons and for states that might decide to negotiate disarmament agreements among themselves? What do we do about weapon states that say they have no intention to join at any time?
• How will the treaty reinforce the norm of irreversibility? To quote Zia again, “for the prohibition to be binding and enduring, the treaty has to make it impossible to reconstitute the arsenals once they are eliminated.”

“Outrageous to say ‘I will allow others to use mass murder on my behalf.’”

The subtext of this entire discussion—and the most important take-away message from this first week of negotiations—is that the negotiators now talk about “the treaty” as though it were a fact. It’s a fact that still has to be made a reality—if that makes any sense—but no one seems to be asking anymore whether this conference will produce a treaty, only what kind of treaty it will produce and how strong it will be. Our task between now and July is to ensure that the prohibitions contained in the treaty are as strong as possible, and that it will be an effective “pathway” (to use Mexico ambassador Lomonaco’s term) to the elimination of nuclear weapons.

On the agenda today is a discussion of the institutional arrangements that will be needed to support the treaty and ensure it will be effective once it’s adopted. We’ll also hear from conference president Whyte about how she expects to use the intersessional period between now and June. The big question now is when we might see a draft of the treaty text.

This will probably be my last blog for the week. Watch the ICAN website for any late breaking news coming out of today’s meeting.