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Article Excerpt
At the 2005 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, states parties failed to adopt a final declaration. Unlike at previous meetings, there was disagreement 'across all frontlines'. (1) Today, multilateral negotiations on nuclear disarmament remain at a standstill. The apparent failure of the current step-by-step approach has prompted some states to call for a comprehensive approach involving the negotiation of a legally binding nuclear weapons convention ('NWC'). This article examines whether states are required, under the NPT and customary international law, to negotiate such a treaty and, if so, whether that obligation is time-bound It then identifies potential obstacles to the commencement of negotiations and steps which, if taken, might make negotiations more likely. It concludes that, if much greater pressure is placed on nuclear-armed states by the public and by other states, negotiations for an NWC could begin soon after the 2010 NPT Review Conference.
CONTENTS I Introduction A Growing International Support for an NWC B The Potential Role of Australia in Advancing an NWC II An NWC and International Law A Whether There Is an Obligation to Disarm B Whether the Obligation to Disarm Is Time-Bound III Obstacles to the Negotiation of an NWC A A Crisis of Confidence among NPT Parties B The Failure of the CTBT to Enter into Force C The Prioritisation of Other New Multilateral Treaties D Slow Progress on Disarmament by the US and Russia E The Failure to Eliminate Other Weapons of Mass Destruction F Abiding Concerns about Nuclear Proliferation G A Lack of Support from the Nuclear-Weapon States IV The Path Towards the Negotiation of an NWC V Conclusion
I INTRODUCTION
In 1996, the International Court of Justice held, unanimously, that '[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects'. (2) This obligation, like any legal obligation, must be performed within a reasonable time and cannot be postponed indefinitely) But today--four decades after states concluded the Treaty on the Non-Proliferation of Nuclear Weapons, (4) which includes an obligation to disarm--the goal of a world without nuclear weapons remains elusive. Former United Nations Secretary-General Kofi Annan has described the current state of play as one of 'mutually assured paralysis', where nuclear-armed states argue that the global environment is not conducive to disarmament because the risk of proliferation is too high, and states without nuclear weapons refuse to support nonproliferation measures because the nuclear-weapon states have been unwilling to sacrifice them. (5)
In fact, so dire is the current situation that in 2007 the Bulletin of the Atomic Scientists decided to move the minute hand of its Doomsday Clock two minutes closer to midnight. (6) The board of directors delivered a sobering warning to humanity: '[w]e stand at the brink of a second nuclear age. Not since the first atomic bombs were dropped on Hiroshima and Nagasaki has the world faced such perilous choices'. (7) It cited North Korea's nuclear test in October 2006, Iran's 'nuclear ambitions', and a 'renewed emphasis' in the United States 'on the military utility of nuclear weapons' as reasons for the decision. (8) These developments, among others, have placed the NPT under great strain. (9) At the last Review Conference for the treaty, held in 2005, states could not agree on any plan of action. (10) Last year, on a historic visit to Hiroshima, Australian Prime Minister Kevin Rudd described the treaty as 'fragmenting'. (11)
With these bleak realities in mind, it is perhaps unsurprising that some observers consider a nuclear-weapon-free world to be little more than a distant dream. (12) Several commentators have argued that it would be counterproductive to focus on the end goal of abolition at this stage. (13) However, a growing number of states, individuals and civil society groups have begun to assert that, in fact, the opposite is true: the dire state of the present situation requires us to focus our attention squarely on elimination, not merely arms control. (14) They also believe that a step-by-step approach cannot succeed unless it takes place within a comprehensive framework. In January last year, four former American statesmen--George P Shultz, William J Perry, Henry A Kissinger and Sam Nunn--co-authored an essay in the Wall Street Journal in which they argued that '[w]ithout the vision of moving toward zero, we will not find the essential cooperation required to stop our downward spiral'. (15) In December, a group of approximately 100 prominent political, military, business, faith and civic leaders from around the world launched Global Zero, a major international campaign aimed at building public awareness and political support for a new nuclear disarmament treaty. 16 They reason that:
Only in pursuing a treaty for zero nuclear weapons ... will governments be galvanized to undertake the monumental effort, dedicate the resources and mobilize the international cooperation necessary to negotiate and resolve the critical issues for eliminating nuclear weapons. (17)
In 1997, (18) the year after the ICJ's Nuclear Weapons Advisory Opinion, a consortium of experts in law, science, disarmament and negotiation drafted a model treaty for zero nuclear weapons. (19) Known generally as a nuclear weapons convention, (20) it is similar in form to existing conventions outlawing biological weapons, (21) chemical weapons, (22) anti-personnel mines (23) and certain types of cluster munitions. (24) Unlike the NPT, it explicitly prohibits the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons, and provides for their elimination. (25) Many states and most antinuclear civil society groups now see negotiations for an NWC in the near future as politically feasible and indeed necessary if we are to move beyond the current disarmament stalemate. (26) UN Secretary-General Ban Ki-moon urged states last October to consider such a treaty as a possible path forward, describing the model NWC drafted by civil society as 'a good point of departure' for negotiations. (27)
The introduction of this article assesses the significance of the growing support for an NWC and explores the role that the Australian Government might play in advancing such a treaty. Part II examines the potential role of international legal obligations in propelling states towards an NWC. Part III identifies what a number of states perceive to be key obstacles to the commencement of negotiations, and how they might be overcome. Part IV outlines some steps which, if taken, would make the early commencement of negotiations more likely. It concludes that, with greater pressure placed on nuclear-armed states by their publics and by states without nuclear weapons, formal negotiations could begin shortly after the next NPT Review Conference, due to take place in 2010. The article does not consider how long it might take to conclude such negotiations or when a nuclear-weapon-free world can be achieved; nor does it seek to make the case for an NWC, as that has been done in detail elsewhere. (28)
A Growing International Support for an NWC
A majority of states, and most civil society groups promoting nuclear disarmament, have come to accept that the pursuit of an NWC--which would entail a comprehensive or 'incremental--comprehensive' (29) approach to disarmament--is our best or only hope of moving beyond the current situation of 'mutually assured paralysis'. (30) The call for negotiations on an NWC has intensified in response to the Nuclear Weapons Advisory Opinion and, more recently, the failure of the 2005 NPT Review Conference, (31) as well as several events indicating that the step-by-step approach is faltering. These include in particular the nuclear tests carried out by India and Pakistan in 1998; clandestine exchanges in nuclear weapons technology involving Pakistani scientist Abdul Qadeer Khan; and the withdrawal of North Korea from the NPT and its subsequent nuclear test. (32) An NWC is now the central aim and a key rallying point of most international non-governmental organisations working in the field of nuclear disarmament, (33) and it is perhaps only a matter of time before it also becomes a central objective of states, including those with nuclear weapons. Whilst most states already support the idea of an NWC in principle, few have become active champions of it, perhaps partly for fear of appearing too idealistic. (34) But the deterioration of the NPT and a growing risk that nuclear weapons will one day be used again, either by design or accident, (35) are drawing more and more states to the unavoidable conclusion that an NWC must be part of the solution.
Every year since 1996, the UN General Assembly has passed a resolution calling on states immediately to fulfil the disarmament obligation articulated in the Nuclear Weapons Advisory Opinion 'by commencing multilateral negotiations leading to an early conclusion of a nuclear weapons convention'. (36) In December 2008, 127 states voted in favour of the resolution, 30 voted against and 23 abstained. (37) Four nuclear-armed states--China, India, Pakistan and North Korea (38)--supported it, while the other five, (39) along with all European countries that host US nuclear weapons on their soil as part of a North American Treaty Organization nuclear-sharing arrangement, (40) voted against it. The US, Russia, France and Israel have all argued that it is premature even to think about negotiating an NWC, (41) while the UK has accepted the end goal of an NWC but believes that it is too early to commence negotiations. (42)
This annual General Assembly resolution gives us the clearest indication we have of the breadth of support among states for negotiations on an NWC. In the years since it was first introduced, the number of states supporting it has not grown substantially. (43) However, the call for an NWC has arguably become louder. In 2007, for the first time, support among states for the idea of an NWC was noted in the outcome document of the NPT review meeting. (44) In the margins of that meeting, three civil society groups had launched Securing Our Survival (SOS): The Case for a Nuclear Weapons Convention, (45) which included an updated version of the model NWC originally drafted in 1997. (46) Costa Rica and Malaysia tabled the updated model convention as an official document of the meeting, (47) and subsequently as an official document of the 62nd session of the UN General Assembly. (48)
Several major initiatives supportive of an NWC have also taken place outside the regular disarmament forums. For instance, the Middle Powers Initiative, a program of the Global Security Institute, has on four occasions brought together like-minded states to explore, inter alia, ways to begin negotiations on disarmament steps leading to an NWC. (49) The Non-Aligned Movement--a group of more than 100 states which consider themselves not to be formally aligned with or against any major power bloc--held a high-level summit in 2004 at which participating states 'emphasized the necessity to start negotiations on a phased programme for the complete elimination of nuclear weapons' including an NWC. (50) In 1998 the foreign ministers of all eight states comprising the New Agenda Coalition--Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa and Sweden--released a joint statement in which they affirmed 'that a nuclear-weapon-free world will ultimately require the underpinnings of a universal and multilaterally negotiated legally binding instrument or a framework encompassing a mutually reinforcing set of instruments'. (51)
States remain, of course, the principal actors in any treaty negotiation process. Therefore, the level of state support for an NWC provides a good indication of when negotiations for such a treaty might begin. However, civil society groups and parliaments are playing an increasingly important role, (52) not only in influencing the negotiating positions of states, but also in bringing about negotiations in the first place. For example, it is unlikely that negotiations for the Mine Ban Treaty would have taken place when they did had it not been for the effective lobbying coordinated by the International Campaign to Ban Landmines. (53) Therefore, for the purposes of this article, it is worth considering the potential influence of non-state forces in bringing about negotiations on an NWC. One major initiative aimed at promoting support for an NWC is the recently initiated International Campaign to Abolish Nuclear Weapons ('ICAN'), which models itself on the landmines campaign. Mayors for Peace, a major network whose membership comprises over 2926 mayors in 134 countries, (54) has adopted the idea of an NWC as part of its vision to eliminate nuclear weapons by 2020. (55) And members of many national parliaments, as well as the European Parliament, have introduced resolutions calling for the negotiation of an NWC. (56)
All of these civil society initiatives reflect widespread public support for an NWC. In 2007, The Simons Foundation in Canada commissioned an opinion poll which asked 1000 adults in each of six countries--Britain, France, Italy, Germany, the US and Israel--whether they support or oppose 'eliminating all nuclear weapons in the world through an enforceable agreement'. (57) No country had more than 15 per cent of respondents moderately or strongly opposing the idea. (58) Support was strongest in Italy and Germany, the only two countries without any nuclear weapons of their own, (59) where 94.6 percent and 95.4 per cent of respondents, respectively, indicated that they supported the idea. (60) More recently, Global Zero released a poll of 21 countries, including every nuclear-armed nation except North Korea, which also 'found that global public opinion overwhelmingly favours' the negotiation of a time-bound international agreement for the elimination of nuclear weapons: 76 per cent of respondents worldwide, 77 per cent in the US and 69 per cent in Russia. (61) The last authoritative survey in Australia on the question of a treaty to ban nuclear weapons was conducted by Roy Morgan Research in 1998, which found 92 per cent support.
B The Potential Role of Australia in Advancing an NWC
While in Opposition, the Australian Labor Party promised that, if elected to government, it would drive the international agenda for an NWC. (62) The party's then foreign affairs spokesperson, Robert McClelland MP, (63) argued that the proposal to establish an NWC is 'timely and responsible', (64) and that '[u]ltimately the question to be asked is not why there should be a nuclear weapons convention but why the international community has not yet agreed to start negotiating one'. (65) He envisaged such a treaty to be used both as 'a tool to assist short-term disarmament goals' and 'a concrete long-term political objective'. (66) However, the Labor Government has not yet affirmed its commitment to an NWC (67) other than in a highly qualified statement to last year's NPT meeting in Geneva: 'at an appropriate time, the...
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