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

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 of 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 objective 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 1

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 of 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 or 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 2