UN Open-ended Work Group on "Taking forward multilateral - - PDF document

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UN Open-ended Work Group on "Taking forward multilateral nuclear disarmament negotiations"

Palais des Nations, 22 February 2016

"Effective legal measures: Possible pathways towards a nuclear-weapon-free world"

Working Paper and notes for Presentation by Rebecca Johnson BSc (Hons), MA, PhD,

FRSA, director of the Acronym Institute for Disarmament Diplomacy, in Panel I on 'substantively addressing concrete effective legal measures, legal provisions and norms that will need to be concluded to attain and maintain a world without nuclear weapons'

I welcome the convening of this UN Open-ended Work Group on "Taking forward multilateral nuclear disarmament negotiations", and thank the Chair, Ambassador Thani, for inviting me to speak on Panel I today. I have been asked to look at effective legal measures in the context of possible pathways towards a nuclear-weapon free world. The goal of a nuclear-weapon free world is now widely endorsed – from statements by the UN Secretary-General, to US President Obama and other government leaders, and in various UN resolutions and the consensus final documents of the 2010 NPT Review Conference, which in view

• f the failure of the 2015 Review Conference is the most recent expression of the understandings

and commitments of NPT States Parties. But there appears still to be a wide gap between the rhetorical endorsing of the aspiration or

• bjective of making the world nuclear-weapon free and the political-diplomatic achievement of

concrete steps to attain it. Multilateral non-proliferation measures that were developed from 1963 onwards, as well as bilateral and unilateral reductions since 1987, may have limited numbers of nuclear-armed states and their arsenals, but they have not brought about nuclear disarmament. Today there are over 15,000 nuclear weapons in the hands of nine states that continue to deploy, possess, maintain, modernise and replace them. And, through doctrines, policies and operations to risk and threaten nuclear weapons use. A further thirty or so states are in nuclear-weapon-based alliances with defence doctrines that require, permit and enable nuclear weapons to be used under certain circumstances, including five European states defined as "non-nuclear" NPT parties, which agree to the stationing of nuclear weapons on their territories, and facilitate their deployment through joint nuclear exercises. There are legal and practical gaps between the prohibitions, obligations and stated aims of the 1968 Non-Proliferation Treaty (NPT) and the legal requirements for the prohibition and elimination of all nuclear weapons, as necessary for the attainment and maintenance of a nuclear-weapon free world, even taking into account the relevant decisions, documents, and steps agreed in the 1995, 2000 and 2010 NPT Review Conferences, and additional instruments and agreements that have come to be established to strengthen the non-proliferation regime. In particular, there are multiple gaps between the prohibitions, obligations and measures for compliance and implementation that the NPT imposes on its states parties, tailored according to whether they are defined as nuclear-weapon states (NWS), namely China, France, Russia, the

2 United Kingdom and United States, or non-nuclear-weapon states (NNWS). While understandable in view of the geostrategic conditions pertaining when the NPT was negotiated in the 1960s at the height of the cold war, the different provisions that have been applied to some but not all states parties have contributed to the NPT's universality gap, whereby four nuclear-armed states (NAS), the DPRK, India, Israel and Pakistan, have nuclear arsenals outside of the NPT. Because two classes of states were defined and given different obligations in the NPT, its non- proliferation and disarmament provisions are not treated as customary law, despite the high number

• f states parties.

This is the context in which 123 nations have (to date) signed the Humanitarian Pledge initiated by Austria, recognising the necessity to take "effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons". Achieving and maintaining a nuclear-weapon free world will require the adoption and implementation of effective legal and practical measures to prohibit and eliminate all nuclear weapons through processes that include states that do not consider themselves to be covered by the prohibitions and obligations of the current non-proliferation regime. While the negotiating processes need to be open to all, inclusive and non-discriminatory, states of course have nationally determined choices about whether and how to engage in negotiations, and when they are ready to sign and accede to the resulting legal agreements and instruments. What would constitute effective legal measures? To be effective, a legal measure needs to:

• Address a legal gap or problem – there's no point in negotiating something that is already fully

covered under existing law and practice.

• Contribute practically towards removing impediments and enabling and strengthening legal

regimes to bring about the desired objective, defined in this OEWG as a nuclear-weapon free world - for example, by strengthening relevant norms, laws, rules and institutions and paving the way for further progressive steps and effective measures to be taken.

• Clarify or add to existing legal prohibitions or obligations, or spell out and facilitate

implementation of international obligations and commitments that have not been fulfilled, for example by establishing deadlines, timetables, specific interim elimination targets and steps, implementing mechanisms and/or verification arrangements – examples include bilateral treaties, such as the 1987 Intermediate-range Nuclear Forces (INF) Treaty and 2011 New START; regional and zonal arrangements such as adopted through the Tlatelolco, Raratonga, Pelindaba, Bangkok and Semipalatinsk Nuclear-Free Zone Treaties; partial or limited treaties such as the 1963 Partial Test Ban Treaty (PTBT) or multilateral treaties like the 1996 CTBT.

• Contribute something substantive that states can act on, especially in the near term – this may

include measures to be enacted or taken forward in national laws and jurisdictions to address activities by others, including non-state actors, that violate laws and norms or threaten, impede

• r undermine progress towards disarmament.

Most importantly, to be effective, a measure must be capable of being negotiated and brought to conclusion in a timely manner. No matter how good some proposals may appear to be in theory and aspiration, they don't become effective legal measures if they are not negotiated – to be legally effective measures, they have to start by getting transferred from a wishlist or drawing board and into a negotiating forum where

3 they can be hammered out and brought to conclusion. Therefore, it is necessary not only to consider the comparative merits, scope and purposes of different measures and steps, but also whether there are realistic and achievable strategies and processes by which negotiations may be initiated and brought to conclusion. Five types of measures are frequently cited as offering pathways towards a nuclear-weapon free world:

• 'step by step' approach requiring actions initiated, agreed and undertaken by some or all of the

nuclear-armed states, such as the NAM plan of action put forward in 1996 in the Conference on Disarmament or various objectives, steps and action points adopted by NPT states parties in 1995, 2000 and 2010;

• bringing further nuclear-weapon free zones (NWFZ) into force;
• comprehensive nuclear weapons convention (NWC), such as the model NWC developed by

NGOs in the 1990s, an updated version of which was circulated by Costa Rica to the UN General Assembly in 2007;

• framework convention or framework of separate mutually reinforcing instruments, such as

proposed by the UN Secretary-General in 2008;

• nuclear ban treaty (NBT) under international humanitarian law that would inter alia prohibit

the use, deployment, development, possession and related activities and require (but not negotiate detailed mechanisms for) their complete elimination, as advocated by the International Campaign to Abolish Nuclear Weapons (a network of over 400 civil society

• rganisations in more than 100 countries).

These examples are often characterised as if they were mutually exclusive alternatives, either incremental or comprehensive. Treating them as such may be politically expedient for certain advocates or opponents, but that is neither necessary in concept or practice. Multilateral and global treaties do not have to be comprehensive; they may be partial, as with the Partial Test Ban Treaty (PTBT) or limited in scope, as with fissile material ban proposals. And steps may lead to further processes that integrate comprehensive and incremental measures. Progress is likely to be more fruitful if it is recognised that both comprehensively-aimed and incrementally-appearing measures may open up opportunities that enable progress to be made on useful measures that have been previously stuck in the doldrums or viewed as too ambitious. The very processes of starting and conducting negotiations often open up new ways to view what is possible and achievable. Any of these approaches, if carried through with determination and political support to attain and maintain a nuclear-weapon free world, would bring that objective much closer. The central question that UN member states need to decide on is not which objective is most desirable per se, but which process and sequencing is most practically achievable in a timely manner. This assessment requires a realistic and forward-looking analysis of geostrategic, political and diplomatic conditions, taking into account potential obstacles and ways round them. The analysis needs to include:

• consideration of existing and potential fora and mechanisms to undertake, negotiate, conclude

and implement the required measures;

• which approach is most likely to influence and affect (directly or indirectly) the nuclear armed

states' behaviour, including their perceived benefits and reliance on nuclear weapons – and doctrines and policies associated with nuclear deterrence and use;

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• the intended and foreseeable role and relationship of different measures with the desired goal,

timing and pathways, as well as the likely interaction between different measures that could accelerate or impede progress;

• the power and roles of different stakeholders – nuclear-armed states and their allies, nuclear

free states, domestic and transnational civil society actors, and the roles these stakeholders currently play – and how these could change to promote or obstruct different measures and approaches. It is important also to take into account how multilateral diplomacy functions on three intersecting levels – domestic, international and transnational. In addition to intersecting, these levels are also likely to be characterised by domestic and transnational interactions that may include government

• fficials, civil society and intergovernmental institutions and personnel, with complex mechanisms

– depending to some extent on the political characteristics of democratic and less democratic state structures – for influencing domestic, policy and diplomatic decision-making. To underline, a legal measure cannot be effective if it doesn't get negotiated. The mobilising phase referred to as "prenegotiations" in academic discourse, is therefore of critical – but under-rated – importance. The role of civil society may be crucial to take a measure from wishlist to negotiating forum. As a general rule, for a given multilateral disarmament measure to become successful, the strategies and combined bargaining power of its proponents – state and civil society – need to

• utweigh the power and determination of dominant states to prevent the measure from becoming

law. Various cognitive strategies can be used to change the balance of this equation – strengthening the bargaining power of proponents and weakening the opposition. If these general conditions are not met, the negotiations are likely to fail or deliver a lowest- common-dominator outcome. Those seeking to bring an issue to the negotiating table or carry multilateral arms control or disarmament negotiations forward successfully need to pay attention to all of these components and choose approaches that bypass or minimise the ability of obstructors, boost the resources and bargainging power of proponents, and maximise the opportunities for meaningful negotiations to bring an effective measure into law. Lessons drawn from recent negotiations (e.g. the deadlocked CD, the CTBT, Mine Ban Treaty, Cluster Munitions Treaty, Arms Trade Treaty) point to the following factors and conditions for effective multilateral measures to be concluded:

• So-called 'bargaining power' in negotiations does not simply reflect attributive military or

economic power, but rests on the ability to influence and control outcomes – while the P5 nuclear-armed states with UN Security Council vetoes may have more advantages to achieve their objectives, including blocking any initiatives or measures they don't like, there are ways in which disarmament advocates and regime-builders can offset, bypass or change P5 and nuclear-armed states' opposition.

• Multilateral diplomacy tends to deliver better humanitarian disarmament and security
• utcomes if negotiators pursue integrative negotiating strategies that shift the dynamic from

zero-sum competition among dominant states towards regime-enhancing outcomes that benefit all.

• Civil society, acting domestically and transnationally, can be of fundamental importance in

fostering convergence that expands the zones of perceived, possible and effective pathways and agreements.

• Less equipped states in military, economic, political and technological terms can enhance

their capabilities to accomplish regime-building, humanitarian and security objectives

5 through unifying strategies and building support and diplomatic alliances involving nuclear free states, allies in nuclear-armed and dependent (umbrella) states, and progressive civil society. When considering what measures will be most effective to pursue multilaterally, attention must be paid to domestic as well as international and institutional mindsets and power struggles. These may involve officials, agencies and pressure groups (bureaucratic, diplomatic, civil, military or political). While usually associated with obstacles to effective measures, a clear-eyed analysis of such facts

• n the ground should lead to the development of strategies to mobilise and shape public opinion

and governments' perceived national and security interests, and shift foreign and defence policies

• ver time, thereby bringing previously sceptical or obstructive governments into displaying more

constructive, regime-building negotiating positions. Important factors when determining which disarmament approach to prioritise include assessing which states or group(s) of states are willing and able to take the lead and unifying a sufficiently coherent team comprising government representatives, diplomats and civil society. Decisions regarding negotiating forum, rules and timing need to be made on the basis on what will best deliver an effective outcome. Factors influencing the strategies and timing of initiatives as well as outcomes may also include: internal policy cohesion or division; the level of domestic political attention and support; geostrategic and political positioning; communication and diplomatic capabilities, including the targetting of information and utilisation of knowledge and expertise. Brief analysis of five options for disarmament measures 1) Step-by-step approach – also sometimes equated with a 'building block' approach Traditional arms control was largely conceived as a process of linear steps that would have to be undertaken and agreed first and foremost by the states that possessed the weapons in question, with the largest nuclear-armed states – the United States and Russia – taking the lead. This approach appears to be favoured by most of the nuclear-armed states and their allies, who claim it is tried and tested. It has certainly been tried, but to the extent that the step by step approach has been tested in the past seven decades, it has to be reckoned to have failed to provide a convincing pathway towards the prohibition and elimination of nuclear weapons. Arguably the best tried programme of steps and actions is the "Thirteen Steps" initiated by the New Agenda Coalition in their declaration "Towards a New Agenda for Disarmament" in 1998. The Thirteen Steps were multilaterally negotiated by most if not all the nuclear-armed states together with NNWS at the 2000 NPT Review Conference, and adopted by NPT consensus (as well as being reinforced in numerous UN General Assembly resolutions thereafter). These steps (including principles, objectives and measures) were framed with a comprehensive commitment deriving from both the NPT and the 1996 advisory opinion of the International Court

• f Justice. Negotiated and accepted during the Review Conference by the NWS this expressed the

“unequivocal undertaking by the nuclear weapon states to accomplish the total elimination of their nuclear arsenals”. Other steps agreed by NPT consensus included:

• CTBT entry into force and implementation;
• conclusion of a fissile materials ban;

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• moratoria both on testing and on fissile material production, pending entry into force of those

treaties;

• unilateral measures to cut arsenals as well as deeper bilateral US-Russian reductions in nuclear

forces;

• transparency (i.e. the provision of more open information on nuclear capabilities and the

implementation of disarmament agreements);

• reductions in non-strategic nuclear weapons;
• concrete measures to reduce the operational status of nuclear weapons (a dilution of the

intended recommendation to take the weapons off alert);

• diminishing the role of nuclear weapons in security policies (understood to mean initiatives

relating to deterrence and the potential first use of nuclear weapons that underpins NATO and Russian nuclear doctrine);

• the principle of irreversibility to be applied to nuclear arms control;
• five power disarmament approaches;
• further initiatives to put fissile materials (declared “excess”) permanently under safeguards;
• verification;
• pursuit of the “ultimate objective” of complete and general disarmament under effective

international control. Notwithstanding their role in negotiating and adopting these principles, objectives and steps in conjunction with their NPT Article VI obligations, the NWS began publicly backing away from most if not all these negotiated agreements within months, with some claiming that they were never meant to be legally binding. Ten years later, the best that could be negotiated on disarmament at the 2010 NPT review conference was a weakened version of what had been previously agreed in 2000, identified as "action points". These have also not been achieved with any significant degree of effectiveness, and the 2015 NPT Review Conference failed to adopt anything more or even agree on how well or badly any progress had been made on the agreed actions. The only one of the priority steps identified when the NPT was extended in 1995 is the CTBT. Multilateral negotiations were concluded among 60 members of the Conference on Disarmament (CD) in 1996. When the CD was blocked by one state from adopting its own treaty text, a "leap frog" manoeuvre was initiated by Australia to enable the text to be debated and voted on by the UN General Assembly. Though considered highly controversial at the time, this was the only way to enable the CD's treaty text to become an effective legal measure. Taking treaty texts to the UN General Assembly has now become a recognised and legitimate step for multilateral treaties, irrespective of whether negotiations were conducted through CD or UN auspices or by standalone processes, such as the Ottawa and Oslo processes that negotiated the 1997 Mine Ban Treaty and 2008 Cluster Munitions Convention. Despite the drawback that the CTBT has not entered into full legal force, is widely viewed as an important, useful and effective legal measure. Depending on the circumstances, legal measures can be – or more to the point, can often become – significantly effective for many purposes, even if they are not able to be verified or enter fully into force. Examples of such significant if not fully effective legal measures are: the Biological and Toxin Weapons Convention (BTWC), which lacks multilateral verification; and the CTBT, which has been signed by 183 states, ratified by 164 but is unable to take full legal effect due to the non- accession of five NAS and two NNWS on the "annex 2" list of 44 states whose signature and ratification was required by the treaty's extraordinarily stringent entry-into-force text (Article XIV). Undoubtedly it would be better for the non-proliferation regime if the CTBT had been able to enter

7 into force years ago, as that would provide greater powers to verify compliance and address

• violations. Nonetheless, the CTBTO is a well functioning multilateral institution and the norm

against testing has been reinforced by its existence, even if not universally adhered to. Despite DPRK's recent underground tests, evidence for the CTBT's important norm-building impact is evidenced by the fact that none of the NWS have conducted nuclear explosive tests since signing the treaty in September 1996, and India and Pakistan undertook a bilateral-regional moratorium in 1998 (after each conducting a handful of tests in May), despite neither of these South Asian states having yet signed the CTBT. Other than the CTBT and the US-Russian New START agreement, the step by step approach has a long way to go to convince people that it could be a viable pathway towards a nuclear-weapon free world. That is not to say that the principles and measures identified in the 13 Steps and similar programmes of action in UN and CD contexts over the past few decades are not valid

• aspirations. If the NWS had really pursued the implementation of those laudable steps

through unilateral, bilateral, plurilateral or multilateral processes, the world would be much closer towards the goal of nuclear disarmament. But they didn't. And other nuclear-armed states have tended to behave as if steps negotiated in NPT fora do not apply to them. The fissile material (cut-off) treaty (FM(C)T) was the second specific measure identified in 1995, following adoption by the Conference on Disarmament of a negotiating mandate (the Shannon Mandate). In the past 21 years, FM(C)T negotiations have failed to get off the starting block. During that time at least two NAS in the CD have carried on producing plutonium and highly- enriched uranium for their weapons programmes. The CD has been deadlocked for almost all that

• time. At the current rate, a fissile materials treaty will only be negotiated when it is no longer an

effective measure. This is not the time to debate the reasons for the CD's failure, except to note that its membership is barely one-third of the UN Member States, its rules of procedure are based on an exclusive form of consensus which provides a blocking power to each CD member, and since 1978 the CD has only negotiated and concluded two treaties, the CWC and CTBT (and as noted above, was unable to adopt the latter before it was sent to the UN General Assembly, where it was overwhelmingly approved and adopted). The problem is not the individual steps per se, though some are less useful and progressive than

• thers, but the context in which we ask for them to be undertaken.

Treated as if they have to be sequenced one after another in a linear manner, the building block or steps approaches still preferred by NAS and their allies are structured (intentionally or not) to create impediments rather than stepping stones to further and effective measures. Undertaken simultaneously, in conjunction with open and unblockable fora, rules and procedures, programmes like the 13 steps could potentially contribute a great deal to laying the groundwork for attaining a nuclear weapon free world. But that is not what has happened in history and real diplomatic life. In view of prevailing and foreseeable geostrategic, procedural and diplomatic conditions, as well as several decades of attempts in which various steps have been agreed but not implemented, the step-by-step approach does not – by and of itself – appear as a realistic and viable pathway to a nuclear weapon free world. 2) Bringing more NWFZ into force.

8 Nuclear-weapon free zones cover the whole of the Southern Hemisphere and parts of the North – Latin American and the Caribbean, the South Pacific, Africa, South-East Asia and Central Asia, as well as Mongolia as a one-nation NWFZ. The objective of a zone free of nuclear and other weapons of mass destruction in the Middle East (MEWMDFZ) continues to be an important

• bjective for many states in the region, and some governments and civil society continue to

develop ideas for NWFZ in North-East Asia, South Asia and Europe. The presence of nuclear weapons and nuclear-armed states in those regions make it very difficult to achieve progress towards establishing negotiations. Unless there is a significant weakening of the salience of nuclear weapons in those regions, which would more likely come about through changes in national perceptions of security and international status and value attached to nuclear weapons, it is difficult to envisage a successful process bringing about a new NWFZ in any of the areas where they might be significant. That said, regional efforts aimed at creating the conditions for NWFZs continue to be politically relevant. Moreover, existing nuclear-free zone member states are in a position to play an even more game- changing leadership role in reducing the value and salience attached to nuclear weapons and paving the way for multilaterally effective international measures, particularly through widening prohibitions and obligations on the use, deployment and transporting of nuclear weapons, as envisaged in both the NWC and NBT approaches. If multilateral nuclear disarmament processes are taken forward, these may shift or remove regional obstacles and pave the way for further regional measures including NWFZ in ways that might be mutually reinforcing. While worthwhile to pursue, at present it appears that the conditions and factors identified above are not conducive to successful negotiations on further NWFZ. 3) Comprehensive nuclear weapons convention (NWC) The concept of achieving a comprehensive all embracing treaty to prohibit and eliminate nuclear weapons – as the BTWC and CWC were negotiated to prohibit and eliminate biological and chemical weapons – has been around a long time. It is no coincidence that civil society initiated and developed the first model NWC in the 1990s, drawing on the CD's negotiations on the CWC and CTBT and seeking to address the gaps left by the CTBT, the indefinitely extended NPT, and the rather equivocal ICJ opinion on the use and threat of use of nuclear weapons. Together with IPPNW, INESAP and IALANA, I was one of the initiators and contributors on the 1997 draft (with the primary text pulled together and written by Merav Datan, who was both a trained physicist and lawyer). At a time when most nuclear-armed governments (and some NNWS) treated nuclear disarmament as something that could not possibly be achieved, the intention of most if not all the MNWC drafters was to demonstrate that legal, technical, verification and institutional solutions could be found and developed to prohibit and eliminate nuclear weapons effectively and with at least if not more rigour and confidence as for the CWC (and rather more than the BTWC). As a means to demonstrate that nuclear disarmament was possible and practically achievable, the MNWC was useful, and gave rise to worthwhile dialogue among lawyers, scientists and diplomats, as well as officials and civil society in and around the nuclear-armed states. This was recognised in the International WMD (Blix) Commission's report "Weapons of Terror", which noted: “Weapons

• f mass destruction cannot be uninvented. But they can be outlawed, as biological and chemical

weapons have been, and their use made unthinkable. Compliance, verification and enforcement rules can, with the requisite will, be effectively applied. And with that will, even the eventual elimination of nuclear weapons is not beyond the world’s reach.”

9 The concept of a NWC derived from traditional arms control, in which negotiations would have to be led by the major NWS and participated in by all "relevant" states. As currently proposed and advocated, NWC negotiations can only be taken forward if the nuclear-armed states take a major role in negotiating it. Little consideration has been given to how and in what forum, conditions and timelines a credible NWC might be negotiated, especially the salient challenge of how to prevent the kind of blocking tactics that have paralysed the CD and other consensus-based processes. As framed, success for a comprehensive NWC requires and depends on the cooperation of nuclear-armed states – or at least the P5 NWS – and that seems unlikely for the foreseeable future. The comprehensive NWC concept is laudable but does not at present meet the factors and conditions likely to make it a practical or effective measure in the near future. It is unrealistic as a measure to create an effective pathway to attain a nuclear weapon free world, but a NWC may eventually come to pass as a late or final legal measure to codify, embed, finalise and verify the elimination of arsenals and maintain a nuclear-weapon free world. 4) framework convention or framework of separate mutually reinforcing instruments In 2008, the UN Secretary-General gave a very significant speech in which he argued for " a new global programme to support disarmament and strengthen international security", and proposed inter alia, that states – particularly the NWS - could "agree on a framework of separate, mutually reinforcing instruments. Or they could consider negotiating a nuclear-weapons convention, backed by a strong verification system, as has long been proposed at the UN." This was subsequently imported into the consensus conclusions and recommendations of the 2010 NPT Review Conference, helping to frame specific disarmament action points. As noted by ILPI, UNIDIR and others, a legally binding framework agreement for the prohibition and elimination of nuclear weapons could take any of several forms, such as a head treaty comprising the key prohibitions and obligations, with or without target dates, and leaving details such as sequence and timing for specific measures and steps, verification and institutional issues to be negotiated and agreed subsequently, either as a series of protocols or as separate "mutually reinforcing instruments". The concept of a framework agreement is attractive. Key questions arise about the forum, rules of procedure, and envisaged participation for negotiations. If getting negotiations underway or concluding the text of a framework agreement requires cooperation and agreement by some or all of the nuclear-armed states, then (as with a NWC) the risk is that this measure would not get off the ground in the foreseeable future, or that if negotiations were initiated, they would be stymied, blocked or indefinitely prolonged by adversaries. The NAS are unlikely to participate without a consensus-based forum, but any consensus requirement would ensure that an ineffective or lowest-common-denominator framework would nullify the potential usefulness and effectiveness of this measure, derail its entry into force, or make it impractical to negotiate any further protocols or practical implementation steps. 5) A nuclear ban treaty (NBT) The concept of a nuclear ban treaty developed from the humanitarian disarmament processes that successfully banned anti-personnel landmines and cluster munitions. What became known as the humanitarian initiative was launched quietly with insertion and adoption of a new "humanitarian consequences" paragraph into the 2010 NPT Review Conference's conclusions and recommendations, adopted by consensus: "The Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for

10 all States at all times to comply with applicable international law, including international humanitarian law." There followed three international conferences on the humanitarian impacts of nuclear weapons (HINW) in Oslo, Nayarit (Mexico), and Vienna in 2013-2014, as well as various humanitarian statements which summarised the risks and catastrophic humanitarian and environmental impacts

• f nuclear detonations, unacceptable harm to civilians, indiscriminate and widespread suffering,

and incompatibility of nuclear weapons use with International Humanitarian Law (IHL). The most prominent and diverse civil society network, ICAN, provided much of the impetus for reinvigorating awareness of the humanitarian impacts and consequences of nuclear weapons, working with Hibakusha (Atomic bomb survivors), elected national and local representatives and a range of scientific and medical experts and organisations to make a compelling humanitarian case for the next step in multilateral negotiations to be a nuclear ban treaty. While deliberately avoiding drafting a text for such a treaty, which could be envisaged as either a standalone measure or the head treaty for a framework approach, ICAN identified some key elements. In particular, ICAN argued that the risks and consequences of the use of nuclear weapons made it urgent to "fill the legal gap" with a legally binding instrument that would prohibit engaging in activities that undertook, enabled or assisted in the use, deployment, acquisition, development, transfers, transporting and stockpiling/possession of nuclear weapons, and which would contain a clear and unequivocal obligation to completely eliminate existing arsenals. Other provisions, including assistance to victims, underscored humanitarian interests as the driving force for prohibiting nuclear weapons. A key purpose of the proposed nuclear ban treaty is to clarify, codify and embed the basic prohibitions on activities associated with using and preparing to use nuclear weapons, consistent with and reinforcing IHL. The treaty would contain a clear and unambiguous obligation to eliminate nuclear arsenals, but is not envisaged as negotiating the specific processes and timelines for elimination. This is the principal way in which a nuclear ban treaty is conceived as different from a NWC. The basic prohibitions that ICAN puts as elements for an effective nuclear ban treaty also make clear its differences from concepts such as a no-use treaty (as proposed by India and others for many years). By prohibiting activities such as deployment, transporting and stockpiling as well as use, a nuclear ban treaty goes further than a declaratory instrument by clearly banning the physical and operational activities of preparing to use, as well as deemed by nuclear-armed states and allies to be required for doctrines of use and deterrence. These core conceptual distinctions leads to significant differences in the envisaged role, process and timeline for achieving a nuclear ban treaty, as compared with an instrument on no use or a comprehensive NWC. Under IHL (as distinct from arms control), the rights of states to negotiate prohibition treaties does not depend on whether they possess or deploy such weapons. A nuclear ban treaty is envisaged as the next step on the path to a nuclear weapon free world as it would clarify the legal status of nuclear weapons use and obligations beyond the ambiguities in the NPT and 1996 ICJ opinion. In so doing the treaty would create a much stronger norm against nuclear weapons use and possession, stigmatising the weapons and their advocates, and undercutting the problematic status, value and deterrence roles attached to current arsenals. A next-step nuclear ban treaty would contribute greatly to creating more propitious political and security conditions for accelerating nuclear disarmament, including by removing obstacles and

11 creating incentives for the NAS (and their allies) to undertake further steps and measures – which could include CTBT entry into force, a ban on fissile materials production and stockpiling for weapons purposes, removal and elimination of non-strategic nuclear weapons, further and deeper reductions in arsenals, an end to research and development on more refined or modernised nuclear weapons and delivery systems, and so on. As a near-term objective, a nuclear ban treaty – with or without the participation of nuclear-armed states - is envisaged as changing not only the discourse and incentives for disarmament, but also the calculus of nuclear-armed states and potential proliferators with regard to their existing

• bligations under the NPT, as well as providing civil society in various NAS with stronger legal

and political tools for holding their governments accountable to cease deploying and spending money on developing and manufacturing nuclear weapons. Perhaps the most contentious aspect of ICAN's arguments for a nuclear ban treaty is that it could be legitimately, practically and comparatively quickly negotiated and achieved by NNWS. This factor may be portrayed as a weakness – what use would it be, since the NNWS are already bound by the relevant prohibitions and obligations? – but is also a potential selling point. A nuclear prohibition approach fills a legal gap left by the NPT but would not hinge on the NPT. On the contrary, an important purpose is to establish a negotiating process that is "open to all and blockable by none", putting the four NAS that are outside the NPT on the same legal footing as the five NAS recognised by the NPT – and, in negotiating terms, putting the security interests and bargaining power of NNWS on the same footing as the security interests and bargaining power of nuclear armed states. While all states will face choices about whether to participate in negotiations or not, it is intended to establish a negotiating forum and process that does not hinge on the presence or absence of specific state participants, thereby it is hoped to avoid any particular NAS or regional rivalry to be use its participation to prevent or derail the negotiations as a whole. Once concluded, the UN General Assembly would be invited to consider and adopt the resulting nuclear ban treaty, which would then be open for signature. While the nuclear-armed states would not be able to block the process, they would have the same rights as any UN member state to endorse and sign the treaty at a time of their choosing (or not). Recalling that ideas for legal measures can't become effective if they cannot be negotiated, the fact that none of the nuclear-armed states would be procedurally empowered to veto or block a nuclear ban treaty makes this measure more achievable in negotiating terms than most others. That's why it is conceived as a next realistic step. Whether enough nuclear free and NNWS are willing and able to overcome political and other geostrategic factors to take forward such negotiations in the near term is, however, not yet clear, especially as pressures grow from major allies and dominant trading partners with capacities to wield influence through chequebook diplomacy. To conclude: The value and effectiveness of nuclear disarmament measures lies not only in their intrinsic aims and scope in terms of qualitative and/or quantitative disarmament and non-proliferation, but also in the practicality and timeliness of their achievement, which hinges particularly on the strategies for mobilising support for the preferred measure, for identifying and establishing sufficiently effective alliances, forum, leadership and negotiating rules and processes to enable the measure(s) to be effectively negotiated, concluded and adopted. The differences in role and effectiveness between what are termed incremental measures and

12 comprehensive approaches are not nearly as clear cut as might superficially appear. A nuclear ban treaty, for example, is sometimes castigated by its opponents as an "all or nothing" comprehensive approach, but its advocates are more likely to emphasise its role as an incremental legal approach to bridge a certain kind of legal gap and open a different, more direct pathway to create incentives, opportunities and pressures for today's nuclear-dependent states to reframe their security interests in terms of disarmament rather than rearmament. The nuclear ban measure may be the most recent initiative in the seven decade history of nuclear disarmament efforts, but it has several things going for it that could make it the most realistically achievable in the near term.

• It is an anomaly in international law that nuclear weapons are the only remaining weapons of

mass destruction not subject to an explicit treaty prohibition.

• History shows that legal prohibitions generally precede and facilitate the processes of stockpile

elimination, not the other way around.

• The objective is connected to a practical strategy based on raising widespread international

awareness of the risks and humanitarian consequences of nuclear weapons use and possession, and presenting a relatively simple IHL-based solution of a nuclear ban treaty.

• While the specific process and forum have not yet been determined, proponents of the nuclear

ban measure are agreed that it would have to be "open to all and blockable by none".

• This key prohibition measure can therefore be negotiated and achieved without being blocked
• r derailed by states with a vested interest in keeping nuclear weapons and preventing

meaningful progress towards peace and security in a nuclear-weapon free world.

• History and experience also show that weapons that have been outlawed become delegitimised.

They come to lose their political status, and so do not keep having money and resources invested in their production, modernisation, proliferation and perpetuation. With multilateral measures in particular, the normative, legal and disarmament effectiveness tend to grow over time, so it is important to be clear-headed about the practical and anticipated roles, benefits and gaps in each approach. In particular, agreeing appropriate strategies for effective negotiations are as important as identifying the objectives, as are strategies and further measures to embed and increase the credibility, uptake, salience and effectiveness of any agreements, treaties, frameworks or plans of action. Dr Rebecca Johnson rej@acronym.org.uk