Time to Outlaw Nuclear Weapons

I just read this piece over at The National Interest by Tom Sauer, entitled “It’s Time to Outlaw Nuclear Weapons.” It’s probably the best presentation of a coherent and practical scheme for moving forward with the program of nuclear disarmament that I’ve seen.

Sauer argues for the conclusion of a treaty outlawing the possession of nuclear weapons, by those states willing to sign onto such a statement. He estimates that between 120-150 states might be willing to sign onto such a treaty, and accepts that none of the nuclear weapons possessing states would sign onto it.

Sauer is a little bit low on detail about what the Nuclear-Weapons Ban Treaty would actually say, but since he seems to be alluding to the parallel process on the CBW side, I suspect what he means is that the NWBT would simply be a declaration by all states parties that both the use and possession of nuclear weapons are unlawful, and that the parties obligate themselves never to possess or to use them.

This would be the first procedural step, and would create a broadly supported international norm that could then be referenced by civil society activists within nuclear weapons states to try to persuade their governments to embark seriously on efforts to disarm.

The next step would then be to actually get the nuclear weapons states on board to signing a separate treaty, a Nuclear Weapons Convention (NWC) that would do the much more detailed  and difficult work of setting an actual schedule and targets for disarmament, much like the Chemical Weapons Convention did.

I like this general presentation of the process going forward because I do think Sauer and others in the humanitarian initiative are right that a NWBT, as described here, could indeed likely be agreed now, and would in fact attract a majority of states to sign on to it.  I suspect the nuclear weapons would put a lot of pressure on their allies and client states not to sign it, so I don’t know what the final tally would be. But I think it would be a significant majority of states. And I do think that such a treaty that simply recites the understanding of a majority of states that the possession and use of nuclear weapons is illegal, would be useful not only for the norm internalization purposes that Sauer mentions, but also as an important evidence of both state practice and opinio juris supporting the establishment of a rule of customary international law.

Readers will recall that Marco and I had a good exchange a while ago on the subject of customary international law related to NPT Article VI. See here, here, here, and here. The effectiveness of a NWBT in contributing to the establishment of parallel customary law would involve some of the same issues that we discussed in those exchanges, e.g. Marco’s concern about specially affected states.  But in the end, in my opinion, if a supermajority of states manifested state practice and opinio juris supporting this ban, on a subject that I truly think can be argued persuasively to specially affect all states as potentially no other, a rule of customary international law should and would be recognized to come into existence. This rule would then create obligations for all states, including the nuclear weapons possessing states.

Regarding the subsequent NWC, I have to say I’m not very optimistic at all that such a treaty will ever be concluded, at least not in a form comparable to the CWC. I think that nuclear weapon states’ national interests will always prevent them from agreeing to completely disarm. But that doesn’t mean that the preliminary step of concluding a NWBT is without usefulness. Quite the contrary, for all the reasons discussed. And the setting of such an international legal norm, in both treaty and customary law forms, could over time put pressure on nuclear weapons states to at least reduce their stockpiles of nuclear weapons to low numbers, which would make the world a safer place.


One Comment on “Time to Outlaw Nuclear Weapons”

  1. Denis says:

    The first comment in response to Sauer’s National Interest piece asserts: “This is by far the dumbest piece I have read on National Interest.”

    Now . . . I’d have to admit that I don’t know much about the National Interest, so I can’t agree with the entirety of that flame, but I would tend to endorse the “dumbest piece” characterization as not unreasonable. Here are 5 reasons I say that.

    “The Nuclear Non-Proliferation Treaty (NPT), the cornerstone of the nuclear nonproliferation and disarmament regime, only forbids the possession of nuclear weapons. . . . In fact, it is surprising that nuclear weapons are not yet declared illegal, just as chemical and biological weapons are. ”

    What is he saying?? Seems to me that if the NPT “only forbids” possession, then that is declaring them illegal, which is certainly the line the West takes with IRI.

    And what’s with the “only”???? If the NPT proscription against possessing nukes applied to every state, and if the proscription were to be enforced 100%, then the problem Sauer seeks to resolve – ridding the world of nukes – would be resolved. The problem is not the lack of available proscriptions. What’s needed is a way to force every country to abide by the possession-proscription, rather than just those countries the USG wants to ban from possession.

    Unfortunately, there is no way to do that. Want to resolve this impasse? Amend the UN Charter so that any single veto in the Security Council can be over-ridden by a vote of 75% of the General Assembly. Two or more vetoes cannot be over-ridden. Then you’ll see some nose-to-nose negotiation.

    “The five nuclear-weapon states that acquired nuclear weapons before the entry into force of the NPT—the United States, Russia, the UK, France and China—were allowed to keep them.”

    Hello . . . there is at least one glaring omission here bordering on negligence: Government of Yisrael. What Sauer must have meant to say was: “The five nuclear-weapon states that have admitted to acquiring nuclear weapons . . .”

    GoY had nukes well before the NPT came into effect in 1970, as John Kennedy was well aware before his untimely passing after calling Ben Gurion out on it. This rogue state with its Samson Option, its refusal to admit its obvious possession of nukes, and its persecution of anti-nuke activists is the first problem that has to be resolved if nukes are to be outlawed. Any state that currently has nukes, legally or illegally, would be foolish to give them up as long as a GoY is a nuclear threat. Of all of the nuclear powers, GoY is the least likely to act rationally. As Exhibit 1 in support of this assertion I offer Golda rolling the nukes out onto the launch pad during the Yom Kippur War, as Exhibit 2 I offer Moshe Dyan’s tactic of having GoY cultivate a “mad-dog” persona, and as Exhibit 3 I offer Bibi Netanyahu — ‘nuf said on that one.

    “As long as some nuclear-weapon states object to the principles and timelines outlined in the NWC, a world without nuclear weapons will remain a pipe dream.”

    Now there’s some academic tautology for you. The reason USG, India, GoY, et al. object is precisely to convert the zero-nuke dream of zero nukes into a pipe dream.

    “The nuclear policy of the nuclear-weapon states can only be altered by pressure from within these states.”

    Here Sauer explicitly includes the “un-official” nuke states. If, again, one looks at GoY, one can see how absurdly Pollyanna this statement is. Sauer needs to ask Mordechai Vanunu what the odds are of anti-nuke activists shuttering Dimona. A lot of people wiser than m’self think that the Samson Option will be put into play not just if Yisrael’s existence is threatened, but if its right to posses nukes is threatened. Just think what this world would be like if every country but GoY gave up their nukes.

    “If just one nuclear-weapon state changes its status, as South Africa did in the past, and becomes a non-nuclear weapon state as a result of that debate, the advocates of the Ban Treaty will have met their goal.”

    More self-contradictory poppycock. Sauer starts out with the premise that making nukes universally “illegal” is the way to rid the world of this scourge. That is the stated goal. Then he shifts goal-posts and says the goal is getting one country to give up nukes. It’s not clear that Sauer himself knows what the goal is.

    Instead of more paper to be signed by 10 dozen non-nuke countries and ignored by a handful of nuke-powers, a better approach would be for USG, Russia, and China to form a nuclear-policing super-coalition in which they mutually pledge never to use nukes except to retaliate against any country that first uses them, for whatever perceived reason, and then all three would retaliate against that country. You have to out-Samson the Samson mentality of all nuke states and turn that mentality into a deadly liability. Once nukes become an existential threat to the state possessing them, they will give them up. Then, even if the super-coalition can’t be convinced to give up their own nukes, at least the world would be safer by orders of magnitude.

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