Understanding the UN’s new Treaty on the Prohibition of Nuclear Weapons

On the same day that the third and near-final draft of the text of the UN’s new Treaty on the Prohibition of Nuclear Weapons was released, North Korea tested its latest missile, boasting it had achieved intercontinental ballistic missile (ICBM) capability that brings Alaska within its range. Foreign Minister Julie Bishop joined world leaders in strongly criticising Pyongyang for defying international condemnation of its nuclear and missile program. Yet Australia has boycotted the UN talks, currently the world’s only efforts actually to promote nuclear disarmament. Given that, how much credibility and moral authority does Bishop’s criticism of North Korea have?

Reflecting the widespread dismissive attitude of the nuclear weapon states and allies sheltering under the US nuclear umbrella, Rod Lyon writes that ‘the ban treaty probably won’t remove a single nuclear weapon from the face of the earth’. The recalcitrant states have boycotted the UN ban conference on two grounds: the appropriate global normative framework for regulating nuclear weapons is the Nuclear Non-proliferation Treaty (NPT) and the mandated multilateral disarmament machinery is the Conference on Disarmament.

Newsflash: The Conference has not been able to agree on its own agenda for 20 years and the NPT has never eliminated a single warhead. After 49 years of existence, and 21 years after the World Court unanimously advised that under Article VI all NPT states parties have an obligation to engage in and bring to a conclusion good-faith negotiations on nuclear disarmament, the NPT count on elimination or a disarmament treaty is zero. The UN talks produced an agreed treaty within just one month of negotiations.

The state of nuclear arms control in 2017 shows three storylines:

No negotiations on arms control are currently being conducted between any of the nine countries that collectively possess 15,000 nuclear weapons (China, France, India, Israel, North Korea, Pakistan, Russia, the UK and the US).
The Preparatory Committee process for the 2020 NPT Review Conference began with the first committee in Vienna on 2–12 May.
The UN-mandated conference to negotiate a legally binding instrument to prohibit nuclear weapons met in New York on 27–31 March and 15 June–7 July. The final text was adopted on 7 July by 122 states. It prohibits the acquisition, development, production, manufacture, possession, transfer, receipt, testing, hosting, use and threat of use of nuclear weapons. The treaty is the most significant multilateral development on nuclear arms control in two decades, if not since the NPT itself in 1968.

The sobering first proposition effectively delegitimised the NPT as the dominant normative framework for nuclear arms control. The third proposition is the inevitable result of this disillusionment of the majority of the international community.

Against the twin backdrop of the receding nuclear arms control and disarmament tide and elevated nuclear threat levels, many countries concluded that fresh out-of-the-box efforts were needed by those who neither possessed nuclear weapons nor required the security of extended nuclear deterrence provided by the US. The normative prop for the new initiative was humanitarian principles. The majority of states have reclaimed nuclear agency and were determined to proclaim a more powerful and unambiguous prohibition norm.

The main impact of the UN nuclear ban treaty will be to reshape the global normative context: the prevailing cluster of laws (international, humanitarian, human rights), norms, rules, practices and discourse that shape how we think about and act in relation to nuclear weapons. Stigmatisation implies illegitimacy of a practice based on the collective moral revulsion of a community.

The foreseeable effects of use makes the doctrine of deterrence and the possession of nuclear weapons morally unacceptable to the community at large. Criticism of the treaty as ineffective in eliminating warheads, lacking credibility and impractical is therefore fundamentally misconceived: it confuses the normative impact of a prohibition treaty with the operational results of a full-fledged nuclear weapon convention.

The nuclear disarmament policy goals can be summarised as delegitimise, prohibit, cap, reduce, eliminate. In this five-part agenda, only those with nuclear weapons can undertake the last three tasks. But the rest—the vast majority of the international community—can pursue the first (delegitimisation) and second (prohibition) goals on their own, both as an affirmation of global norms and as one of the few means of exerting pressure on the possessor states to pursue the other three goals.

In this effort at stigmatisation, the ban treaty will draw on the UN’s long-recognised unique role as the sole custodian and dispenser of collective international legitimacy. By changing the prevailing normative structure, it will shift the balance of costs and benefits of possession, deterrence doctrines and deployment practices, and create a deepening crisis of legitimacy.

Stigmatisation and prohibition are the necessary—not sufficient, but necessary—precursors to elimination. The conference was mandated by the General Assembly explicitly to negotiate a prohibition treaty leading to the eventual elimination of nuclear weapons. The boycotting states engaged in a petulant defiance of a duly constituted and UN-mandated multilateral conference and thereby defied the international community and disrespected two-thirds of the NPT membership. Going by the experience of the Chemical Weapons Convention and previous efforts at dismantling nuclear weapons stockpiles, the safe, secure, verified and irreversible decommissioning, dismantlement and destruction of all bombs following a nuclear weapon convention could take between one and two decades.

Just like the nuclear-armed and umbrella states, in the end even Rod Lyon confesses to believing in abolition, but only as ‘the ultimate goal’. It calls to mind St Augustine’s prayer: ‘Lord, make me chaste. But not just yet.’