Time to Outlaw Nuclear WeaponsPosted: April 18, 2016
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.