On 7 July 2017 122 countries at the UN voted to approve the text of a proposed international treaty entitled ‘Draft Treaty on the Prohibition of Nuclear Weapons.’ The treaty is formally open for signature in September, but it only become a binding legal instrument according to its own provisions 90 days after the 50th country deposits with the UN Secretary General its certification that the treaty has been ratified in accordance with their various constitutional processes.
In an important sense, it is incredible that it took 72 years after the attacks on Hiroshima and Nagasaki to reach this point of setting forth this unconditional prohibition of any use or threat of nuclear weapons [Article 1(e)] within the framework of a multilateral treaty negotiated under UN auspices. The core obligation of states that choose to become parties to the treaty is very sweeping. It prohibits any connection whatsoever with the weaponry by way of possession, deployment, testing, transfer, storage, and production [Article 1(a)].
The Nuclear Ban Treaty (NBT) is significant beyond the prohibition. It can and should be interpreted as a frontal rejection of the geopolitical approach to nuclearism, and its contention that the retention and development of nuclear weapons is a proven necessity given the way international society is organized. It is a healthy development that the NBT shows an impatience toward and a distrust of the elaborate geopolitical rationalizations of the nuclear status quo that have ignored the profound objections to nuclearism of many governments and the anti-nuclear views that have long dominated world public opinion. The old reassurances about being committed to nuclear disarmament as soon as an opportune moment arrives increasingly lack credibility as the nuclear weapons states, led by the United States, make huge investments in the modernization and further development of their nuclear arsenals.
Despite this sense of achievement, it must be admitted that there is a near fatal weakness, or at best, the gaping hole in this newly cast net of prohibition established via the NBT process. True, 122 governments lends weight to the claim that the international community, by a significant majority has signaled in an obligatory way a repudiation of nuclear weapons for any and all purposes, and formalized their prohibition of any action to the contrary. The enormous fly in this healing ointment arises from the refusal of any of the nine nuclear weapons states to join in the NBT process even to the legitimating extent of participating in the negotiating conference with the opportunity to express their objections and influence the outcome. As well, most of the chief allies of these states that are part of the global security network of states relying directly and indirectly on nuclear weaponry also boycotted the entire process. It is also discouraging to appreciate that several countries in the past that had lobbied against nuclear weapons with great passion such as India, Japan, and China were notably absent, and also opposed the prohibition. This posture of undisguised opposition to this UN sponsored undertaking to delegitimize nuclearism, while reflecting the views of a minority of governments, must be taken extremely seriously. It includes all five permanent members of the Security Council and such important international actors as Germany and Japan.
The NATO triangle of France, United Kingdom, and the United States, three of the five veto powers in the Security Council, angered by its inability to prevent the whole NBT venture, went to the extreme of issuing a Joint Statement of denunciation, the tone of which was disclosed by a defiant assertion removing any doubt as to the abiding commitment to a nuclearized world order: “We do not intend to sign, ratify or ever become party to it. Therefore, there will be no change in the legal obligations on our countries with respect to nuclear weapons.” The body of the statement contended that global security depended upon maintaining the nuclear status quo, as bolstered by the Nonproliferation Treaty of 1968 and by the claim that it was “the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over 70 years.” It is relevant to take note of the geographic limits associated with the claimed peace-maintaining benefits of nuclear weaponry, which ignores the ugly reality that devastating warfare has raged throughout this period outside the feared mutual destruction of the heartlands of geopolitical rivals, a central shared forbearance by the two nuclear superpowers throughout the entire Cold War. During these decades of rivalry, the violent dimensions of geopolitical rivalry were effectively outsourced to the non-Western regions of the world during the Cold War, and subsequently, causing massive suffering and widespread devastation for many vulnerable peoples inhabiting the Global South. Such a conclusion suggests that even if we were to accept the claim on behalf on nuclear weapons as deserving of credit for avoiding a major war, specifically World War III, that ‘achievement’ was accomplished at the cost of millions, probably tens of millions, of civilian lives in non-Western societies. Beyond this, the achievement involved a colossally irresponsible gamble with the human future, and succeeded as much due to good luck as to the rationality attributed to deterrence theory and practice.
NBT itself does not itself challenge the Westphalian framework of state-centrism by setting forth a framework of global legality that is issued under the authority of ‘the international community’ or the UN as the authoritative representative of the peoples of the world. Its provisions are carefully formulated as imposing obligation only with respect to ‘State parties,’ that is, governments that have deposited the prescribed ratification and thereby become formal adherents of the treaty. Even Article 4, which hypothetically details how nuclear weapons states should divest themselves of all connections with the weaponry limits its claims to State parties, and offers no guidance whatsoever in the event of suspected or alleged non-compliance. Reliance is placed in Article 5 on a commitment to secure compliance by way of the procedures of ‘national implementation.’
The treaty does aspire to gain eventual universality through the adherence of all states over time, but in the interim the obligations imposed are of minimal substantive relevance beyond the agreement of the non-nuclear parties not to accept deployment or other connections with the weaponry. It is for another occasion, but I believe a strong case can be made under present customary international law, emerging global law, and abiding natural law that the prohibitions in the NBT are binding universally independent of whether a state chooses or not to become a party to the treaty.
Taking an unnecessary further step to reaffirm statism, and specifically, ‘national sovereignty’ as the foundation of world order, Article 17 gives parties to the NBT a right of withdrawal. All that state parties have to do is give notice, accompanied by a statement of ‘extraordinary circumstances’ that have ‘jeopardized the supreme interests of its country.’ The withdrawal will take effect twelve months after the notice and statement are submitted. There is no procedure in the treaty by which the contention of ‘extraordinary circumstances’ can be challenged as unreasonable or made in bad faith. It is an acknowledgement that even for these non-nuclear states, nothing in law or morality or human wellbeing takes precedence over the exercise of sovereign rights. Article 17 is not likely to be invoked in the foreseeable future. This provision reminds us of this strong residual unwillingness to supersede national interests by deference to global and human interests. The withdrawal option is also important because it confirms that national security continues to take precedence over international law, even with respect to genocidal weaponry of mass destruction. As such the obligation undertaken by parties to the NBT are reversible in ways that are not present in multilateral conventions outlawing genocide, apartheid, and torture.
Given these shortcomings, is it nevertheless reasonable for nuclear abolitionists to claim a major victory by virtue of tabling such a treaty? Considering that the nuclear weapons states and their allies have all rejected the process and even those within the circle of the intended legal prohibition reserve a right of withdrawal, the NBT is likely to be brushed aside by cynics as mere wishful thinking and by dedicated anti-nuclearists as more of an occasion for hemlock than champagne. The cleavage between the nuclear weapons states and the rest of the world has never been starker, and there are absent any signs on either side of the divide to make the slightest effort to find common ground, and there may be none. As of now, it is a standoff between two forms of asymmetry. The nuclear states enjoy a preponderance of hard power, while the anti-nuclear states have the upper hand when it comes to soft power, including solid roots in ‘substantive democracy,’ ‘global law,’ and ‘natural law.’
The hard power solution to nuclearism has essentially been reflexive, that is, relying on nuclearism as shaped by the leading nuclear weapons states. What this has meant in practice is some degree of self-restraint on the battlefield and crisis situations (there is a nuclear taboo without doubt, although it has never been seriously tested), and, above all, a delegitimizing one-sided implementation of the Nonproliferation Treaty regime. This one-sidedness manifests itself in two ways: (1) discriminatory administration of the underlying non-proliferation norm, most unreservedly in the case of Israel; as well, the excessive enforcement of the nonproliferation norm beyond the limits of either the NPT itself or the UN Charter, as with Iraq (2003), and currently by way of threats of military attack against North Korea and Iran. Any such uses of military force would be non-defensive and unlawful unless authorized by a Security Council resolution supported by all five permanent members, and at least four other states, which fortunately remains unlikely. [UN Charter, Article 27(3)] More likely is recourse to unilateral coercion led by the countries that issued the infamous joint declaration denouncing the NBT as was the case for the U.S. and the UK with regard to recourse to the war against Iraq, principally rationalized as a counter-proliferation undertaking, which turned out itself to be a rather crude pretext for mounting an aggressive war, showcasing ‘shock and awe’ tactics.
(2) The failure to respect the obligations imposed on the nuclear weapons states to negotiate in good faith an agreement to eliminate these weapons by verified and prudent means, and beyond this to seek agreement on general and complete disarmament. It should have been evident, almost 50 years after the NPT came into force in 1970 that nuclear weapons states have breached their material obligations under the treaty, which were validated by an Advisory Opinion of the International Court of Justice in 1996 that included a unanimous call for the implementation of these Article VI legal commitments. Drawing this conclusion from deeds as well as words, it is evident for all with eyes that want to see, that the nuclear weapons states as a group have opted for deterrence as a permanent security scheme and nonproliferation as its management mechanism.
One contribution of the NBT is convey to the world the crucial awareness of these 122 countries as reinforced by global public opinion that the deterrence/NPT approach to global peace and security is neither prudent nor legitimate nor a credible pathway leading over time to the end of nuclearism.
In its place, the NBT offers its own two-step approach—first, an unconditional stigmatizing of the use or threat of nuclear weapons to be followed by a negotiated process seeking nuclear disarmament. Although the NBT is silent about demilitarizing geopolitics and conventional disarmament, it is widely assumed that latter stages of denuclearization would not be implemented unless they involved these broader assaults on the war system. The NBT is also silent about the relevance of nuclear power capabilities, which inevitably entail a weapons option given widely available current technological knowhow. The relevance of nuclear energy technology would have to be addressed at some stage of nuclear disarmament.
Having suggested these major shortcomings of treaty coverage and orientation, can we, should we cast aside these limitations, and join in the celebrations and renewed hopes of civil society activists to rid the world of nuclear weapons? My esteemed friend and colleague, David Krieger, who has dedicated his life to keeping the flame of discontent about nuclear weapons burning and serves as the longtime and founding President of the Nuclear Age Peace Foundation, concludes his informed critique of the Joint Statement by NATO leaders, with this heartening thought: “Despite the resistance of the U.S., UK and France, the nuclear ban treaty marks the beginning of the end of the nuclear age.” [Krieger, “U.S., UK and France Denounce the Nuclear Ban Treaty”]. I am not at all sure about this, although Krieger’s statement leaves open the haunting uncertainty of how long it might take to move from this ‘beginning’ to the desired ‘end.’ Is it as self-styled ‘nuclear realists’ like to point out, no more than an ultimate goal, which is polite coding for the outright dismissal of nuclear disarmament as ‘utopian’ or ‘unattainable’?
We should realize that there have been many past ‘beginnings of the end’ since 1945 that have not led us any closer to the goal of the eliminating the scourge of nuclearism from the face of the earth. It is a long and somewhat arbitrary list, including the immediate horrified reactions of world leaders to the atomic bomb attacks at the end of World War II, and what these attacks suggested about the future of warfare; the massive anti-nuclear civil disobedience campaigns that briefly grabbed mass attention in several nuclear weapons states; tabled disarmament proposals by the United States and the Soviet Union in the 1960s; the UN General Assembly Resolution 1653 (XVI) that in 1961 declared threat or use of nuclear weapons to be unconditionally unlawful under the UN Charter and viewed any perpetrator as guilty of a crime against humanity; the Cuban Missile Crisis of 1962 that scared many into the momentary realization that it was not tolerable to coexist with nuclear weapons; the International Court of Justice majority opinion in 1996 responding to the General Assembly’s question about the legality of nuclear weapons that limited the possibility of legality of use to the narrow circumstance of responding to imminent threats to the survival of a sovereign state; the apparent proximity to an historic disarmament arrangements agreed to by Ronald Reagan and Mikhail Gorbachev at a summit meeting in Reykjavik, Iceland in 1986; the extraordinary opening provided by the ending of the Cold War and the collapse of the Soviet Union, which should have been the best possible ‘beginning of the end,’ and yet nothing happened; and finally, Barack Obama’s Prague speech is 2009 (echoing sentiments expressed less dramatically by Jimmy Carter in 1977, early in his presidency) in which he advocated to great acclaim dedicated efforts to achieve toward the elimination of nuclear weapons if not in his lifetime, at least as soon as possible; it was a good enough beginning for a Nobel Peace Prize, but then one more fizzle.
Each of these occasions briefly raised the hopes of humanity for a future freed from a threat of nuclear war, and its assured accompanying catastrophe, and yet there was few, if any, signs of progress from each of these beginnings greeted so hopefully toward the ending posited as a goal. Soon disillusionment, denial, and distraction overwhelmed the hopes raised by these earlier initiatives, with the atmosphere of hope in each instance replaced by an aura of nuclear complacency, typified by indifference and denial. It is important to acknowledge that the bureaucratic and ideological structures supporting nuclearism are extremely resilient, and have proved adept at outwaiting the flighty politics of periodic flurries of anti-nuclear activism.
And after a lapse of years, yet another new beginning is now being proclaimed. We need to summon and sustain greater energy than in the past if we are to avoid this fate of earlier new beginnings in relation to the NBT. Let this latest beginning start a process that moves steadily toward the end that has been affirmed. We know that the NBT would not itself have moved forward without civil society militancy and perseverance at every stage. The challenge now is to discern and then take the next steps, and not follow the precedents of the past that followed the celebration of a seeming promising beginning with a misplaced reliance on the powers that be to handle the situation, and act accordingly. In the past, the earlier beginnings were soon buried, acute concerns eventually resurfaced, and yet another new beginning was announced with fanfare while the earlier failed beginning were purged from collective memory.
Here, we can at least thank the infamous Joint Statement for sending a clear signal to civil society and the 122 governments voting their approval of the NBT text that if they are truly serious about ending nuclearism, they will have to carry on the fight, gathering further momentum, and seeking to reach a tipping point where these beginnings of the end gain enough traction to become a genuine political project, and not just another harmless daydream or well-intended empty gesture.
As of now the NBT is a treaty text that courteously mandates the end of nuclearism, but to convert this text into an effective regime of control will require the kind of deep commitments, sacrifices, movements, and struggles that eventually achieved the impossible, ending such entrenched evils as slavery, apartheid, and colonialism.
Rethinking Nuclearism
6 Oct[Prefatory Note: This post is the writeup of a presentation in Lund, Sweden at a peace gathering organized and moderated by Stefan Andersson on Oct. 3, 2018.]
Rethinking Nuclearism: Thirty Years Later
More than thirty years ago I applied the term ‘nuclearism’ to the association between the hardware dimensions of the weaponry and their various software dimensions ranging from strategic doctrine to the infatuations of powerful men with their awesome destructive capabilities. This weaponry gave humanity limitless power, not only potentially destructive of a civilization or many civilizations, but threatening the future viability of human and non-human species alike. Such a capacity to wreak destruction had previously belonged in the province of apocalyptic myth and religious foreboding. So when actualized by the bomb dropped on Hiroshima, the results of breathtaking technological breakthroughs., the effects recast the very essence of human condition. Myth and religion lost much of their historical agency, with final agency over human destiny seemingly transferred from God (or the gods) to ordinary human beings.
Yet those atomic explosions also challenged the rationality of the modern world, which supposedly replaced superstition and faith as the foundation for action and security in the world. Why retain a weaponry with such irrational properties now, which would only get worse in the future? The early reaction to nuclear weapons was accompanied by this rational imperative, which at first was widely endorsed by many political leaders, as well as the public. The vision of a world without nuclear weapons was at first not a dream of global idealists but viewed as a rational necessity if the modern world was going to survive and flourish. Before long this mood of foreboding was overcome by realists who managed to build a rational edifice encompassing enough to house nuclear weaponry, initially against the geopolitical background of the emerging Cold War. This grand exercise in establishing the rationality of irrationality was given the name ‘deterrence,’ and despite many changes in the global setting has persisted in a variety of formulations until today.
At the same time, there needed to be ways to reduce the dangers of geopolitical challenges, expensive and risky extensions of nuclearism, and above all, a way found to curtail the spread of such equalizing power to other states. In effect, it was recognized early on that nuclearism, to be sustainable, needed to be managed.To achieve this goal required a Faustian Bargain was needed to induce the great majority of non-nuclear states to forego a nuclear option in a manner that did not compromise their rights as sovereign states. The silver bullet of constructing a management system was nonproliferation, formalized in the Nonproliferation Treaty (NPT) that entered into force in 1968. The inducements for the non-nuclear states seemed substantial: unrestricted access to the benefits of what were called ‘peaceful uses’ of nuclear technology (Article IV) and a right to withdraw from the treaty on three months notice if ‘supreme interests’ reflecting the occurrence of ‘extraordinary events’ so dictated (Article X). The biggest inducement of all was a pledge by the nuclear weapons states, as a matter of urgency and good faith, to agree to pursue nuclear disarmament, and beyond this, general and complete disarmament (Article VI). It should be noted that the NPT fully respected the sovereign rights of non-nuclear states to pursue their security as a matter of national policy, including even the right to withdraw from the treaty, and provided no enforcement mechanisms for verifying non-compliance or providing enforcement in the event of serious violations by either taking steps to acquire the weaponry or through a refusal to negotiate disarmament in good faith.
What has happened since in the 50 years since the NPT was negotiated is both startling and almost totally overlooked even by the most severe critics of nuclearism. The NPT framework has been unilaterally supplemented by a geopolitical regimeof Western powers, headed by the United States. This regime undertakes to enforce the NPT against actual and potential violators, that is, exceeding the obligations accepted by the parties to the NPT. As the attack on Iraq in 2003, the coercive diplomacy directed at North Korea, and especially Iran, has shown, this geopolitical regime takes precedence over international law restraints on the use of force in international disputes, and overrides claims of sovereign rights. At the same time, the nuclear weapons states, without renouncing Article VI, have completely failed to fulfill their commitment to seek nuclear disarmament, a failure that the International Court of Justice identified in its 1996 Advisory Opinion. There is no clearer or more significant demonstration of the primacy of geopolitics in the current enactment of state-centric world order. This impression is reinforced by the refusal of the United States to allow parties to the NPT to exercise their legal right of withdrawal in accord with Article X of the treaty. Compliance with the NPT should be demanded and the geopolitical regime of selective enforcement should be abandoned.
These extremely serious unilateral modifications of the NPT bargain has met with relatively little formal opposition from the affected non-nuclear states and the peoples of the world. The nuclear weapons states have been successful in diverting attention from these modifications by introducing arms controlas a complement to deterrence,even presenting arms control arrangements as steps toward disarmament. Actually, the opposite is true. Arms control is dedicated to cutting risks and costs associated with nuclearism. Its core claim is ‘to make the world safe with nuclear weapons’ rather than the transformativeidea of ‘a world without nuclear weapons.’ These steps involve various international agreements designed to avoid unintended or accidental uses of nuclear weapons. Their dominant goal is to stabilize the managerial approach while treating transformative or abolitionist demands that the weapons be eliminated in a reliably supervised manner as utopian and imprudent.
The confusion that arises from the failure to distinguish these two approaches has helped explain the neutralization of anti-nuclear forces over the decades, despite their enjoyment of overwhelming popular support. The anti-nuclear movement has been unable to mount and sustain a focused campaign against nuclearism. My view is that until this antagonism between management of nuclearism is understood and overcome, there will be no meaningful denuclearization of world politics. Until the managerial approach is directed challenged and repudiated, anti-nuclear forces will be frustrated, forever beating their heads against an iron wall of resistance by the politics of nuclearism. In other words, to move toward a world without nuclear weapons requires an initial conceptual clarity that has so far been lacking. It may, of course, continue to be prudent for intrinsic reasons to adopt certain arms control measures, but to do so now with eyes wide open, which means recognizing that such a step is likely to be a step awayfrom adopting a transformative approach to nuclearism.
What is wrong with this reliance on the managerial approach to regulating nuclearism based on the NPT, the NPT geopolitical regime, and arms control, especially given the apparent political unattainability of nuclear disarmament? I believe a series of strong critical assessments make the managerial approach ethical unacceptable and politically flawed:
–by adopting a geopolitical solution to nuclearism the reliance is placed on hierarchyor nuclear apartheid rather than on equalityamong states and norms that treat equals equally;
–by relying on deterrence, premised on assumptions of strategic infallibility and unconditional rationality the weight of human experience is ignored, which in contrast exhibits pervasive fallibility and sporadic irrationality;
–by prohibiting some states (e.g. Iran) while permitting other states (e.g. Israel) to acquire nuclear weapons the geopolitical regime also suffers from unprincipled discrimination;
–by claiming rights to enforce the NPT, the geopolitical regime violates the UN Charter, authorizes aggression, and specific Charter norms prohibiting non-defensive threats and uses of international force;
–by rejecting a reactive approach to violations of the NPT, the geopolitical enforcers adopt a preemptive war/preventive war rationale that is inconsistent with contemporary international law;
–by threatening massive retaliation and avoiding no first use commitments, nuclear weapons states violate prohibitions against disproportionate, indiscriminate, and inhumane uses of force as embodied in customary international law and international humanitarian law (Geneva Conventions of 1949 and Protocols of 1977);
–by relying on a managerial approach to nuclearism the NPT/AC approach as enhanced by the geopolitical regime evades the bioethical challenges associated with civilizational and survival threats directed at the human species as a whole;
–by overriding the explicit obligations of an international treaty through the imposition of a geopolitical regime, the approach taken diminishes respect for international agreements, political compromise, and the role of international norms of morality and law.
Concluding Concern. If transformational approach is unattainable and the managerial approach deeply flawed, what does that suggest about the current phase of the struggle of the peoples of the world and their governmental allies against nuclearism? It implies, first of all, clarity of analysis so that false hopes are not raised. Secondly, by exposing the serious flaws of the managerial approach there are many reasons to explore and revive support for a transformational approach. Thirdly, in responding to specific initiatives, their relationship to stabilizing the management of nuclearism should be taken into account. Fourthly, a group of BAN states should consider submitting a complaint to the International Court of Justice alleging violations of Articles VI and X of the NPT, as well as organizing in the General Assembly a request for an Advisory Opinion on whether the management of nuclearism is consistent with international law.
As has been the case ever since 1945 ‘living with nuclear weapons’ has been problematic, although the political context has varied over time. The most effective tactics at the present time is to promote an educational understanding of why transformation is necessary and desirable, while management is unacceptable. Additionally, it is vital to mount sustained pressure by the governments of non-nuclear states and international civil society on nuclear weapons states to comply with all the material provisions of the NPT and abandon the geopolitical option of unlawful enforcement that is selective and discriminatory, besides being unlawful, dangerous, and a major cause of international tensions and warfare.
Tags: arms control, geopolitics, Hiroshima, Managerial Approach, Nuclear disarmament, nuclear geopolitics, nuclearism, Transformational Approach