By Syed Qamar Afzal Rizvi.
The Nuclear Security Summit that just ended on Friday in Washington, D.C. wrangled over several thorny nuclear proliferation and terrorism issues, and involved over 50 countries. But the two countries on everyone’s mind were China and Russia. China, because they have started on the world’s largest nuclear build-up in 50 years. And Russia, because they decided not to attend at all.
The fourth Nuclear Security Summit, in the series begun by the Obama administration, showcased definite successes, particularly the significant global reduction in nuclear weapons, the global reduction in nuclear material stockpiles, the increased security on nuclear facilities, the dozen countries that are now free of weapons-grade materials, a newly-amended nuclear protection treaty, and the historic nuclear deal with Iran that has, so far, gone as planned.
The IAEA’s role
International conventions adopted under both IAEA and other auspices have also assigned a clear role and functions to the IAEA in the field of nuclear security and have been approved as such by the Board of Governors. In particular, the Convention on the Physical Protection of Nuclear Material and the 2005 Amendment thereto, the Convention on Early Notification in the Event of a Nuclear Accident, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, and the International Convention for the Suppression of Acts of Nuclear Terrorism have all assigned specific functions to the IAEA.
Non-binding legal instruments promulgated under IAEA auspices, including the Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Revision 5) and the Code of Conduct on the Safety and Security of Radioactive Sources, also illustrate the IAEA’s role in elaborating such guidance and confirm its role in assisting States, upon request, in implementing the recommendations contained therein. Thus, like the international legal framework for nuclear security, the IAEA’s nuclear security mandate is embodied in both binding and non-binding legal instruments adopted under both IAEA and other auspices.
The notion of nuclear disarmament/ nuclear non proliferation
Over the past five years, the international community has devoted attention to the humanitarian, environmental, and developmental consequences of nuclear weapons detonations.
The final document of the 2010 Nuclear Nonproliferation Treaty (NPT) Review Conference referred for the first time in NPT history to the “catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed the need “for all States at all times to comply with applicable international law, including international humanitarian law.”
The discourse on disarmament has also shifted in recent years to a chronic debate over what preconditions must be satisfied to make disarmament ―possible.‖ Some of these make sense and are not at all opposed by serious proponents of disarmament – there is little disagreement, for example, that nuclear disarmament commitments must be binding, irreversible, transparent, universal, and verified. Yet other preconditions – including world peace, ―solving the problem of war,‖ resolving all regional disputes, ending all proliferation and terrorist threats, and even achieving world government – clearly have the thinly-veiled purpose of simply postponing disarmament indefinitely, as other goals displace disarmament as a priority.
The dictum that ―stability and order‖ are necessary preconditions for disarmament ignores the contribution that disarmament makes in strengthening international peace and security, through confidence-building, dispelling mistrust, lessening risks of conflict escalation, eliminating the danger of nuclear war, encouraging the peaceful settlement of disputes, strengthening the legitimacy (and effectiveness) of non-proliferation efforts, and discouraging the threat or use of force – all tied in various ways to the UN Charter.
The issue of legal gap
International law clearly places very heavy restrictions on nuclear weapons use. Nevertheless, there is no unequivocal and explicit rule under international law against either use or possession of such weapons. Although the two other categories of nonconventional weapons are explicitly prohibited because their use would conflict with the requirements of international humanitarian law, the use, production, transfer, and possession of nuclear weapons are not explicitly prohibited. This may reasonably be labeled a legal gap.
The reference to this legal gap in the Humanitarian Pledge does not make it clear whether a prohibition should be separated from the process of physical elimination and, if so, which to pursue first. The question of sequencing is significant. Should prohibition precede elimination? Should elimination come first when conditions allow, with prohibition then following? Could they be pursued simultaneously, in the form of a treaty that would resemble the Chemical Weapons Convention? Should the prohibition form part of a negotiated structure of legal instruments—a formal framework that could set out an agreed sequence or foreshadow the need to agree on a sequence at the outset of the initial negotiations?
The NPT & the emerging challenges
Four main approaches to nuclear disarmament feature frequently in debates in the UN General Assembly First Committee and the NPT review cycle: (1) a comprehensive nuclear weapons convention in which a single legal instrument would provide for prohibition and elimination and in which elimination would precede a prohibition, (2) a framework agreement in which different prohibitions and other obligations would be pursued independently of each other but within the same broad frame, (3) a step-by-step or building-block approach in which elimination would precede prohibition, and (4) a stand-alone ban treaty in which prohibition would precede elimination.
Unsurprisingly, governments have different views on these approaches, depending on the country’s status under the NPT, its membership in other treaty regimes, and its military alliances. At this point, it is not clear which view will prevail. It seems safe to say, however, that the legal gap will continue to be a hotly debated topic in the months and years to come, including in the open-ended working group on “[t]aking forward multilateral nuclear disarmament negotiations” that is meeting in Geneva during 2016.
Deterrence versus horizontal application of international norms?
The doctrine of nuclear deterrence – which Secretary-General Ban Ki-moon has called ―contagious – is now being implemented in various forms by nine States and many more if one includes States that are members of nuclear alliances. More people actually today live in States that have either the bomb or a nuclear umbrella than in States that are fully nuclear-weapon-free. Possessor States also maintain that it is legal to use such weapons (China and India oppose first use but have not ruled out use in response to a nuclear attack) and most oppose the negotiation of a nuclear weapons convention, with the exceptions of China, India, Pakistan, and the Democratic People‘s Republic of Korea.
The western policy of double standard
Yet if such weapons are legal to use, effective in guaranteeing national security, and recognized symbols of power and status among a majority of the world‘s population, such claims are arguably more conducive to the evolution of an unwelcome norm of possession, than to the achievement of abolition. This is why efforts to achieve nuclear disarmament will have to rely upon more than the examples being set by the nuclear-weapons states. The western policy of double standards on this issue or vertical application of nuclear norms has been the root cause of promoting resentment in the comity of nations.
The examples of this western nuclear policy of nuclear segregation/favouritism can be rightly understood keeping in view the cases of both India & Israel.
A humanitarian approach based on non-use therefore would probably best be pursued not in isolation but as a clause in a nuclear weapons convention, as non-use was handled by the Chemical Weapons Convention and, indirectly, by the Biological Weapons Convention.
The successful efforts to negotiate treaties (though still not universal in membership) on anti-personnel landmines and cluster munitions did not seek merely to limit the use of such weapons – non-use was explicitly incorporated as a part of a disarmament (or nonarmament) commitment, and this seems a sensible approach for nuclear weapons as well.
Based on humanitarian law principles, and the evolving rule of law in disarmament, the only legitimate ―sole purpose of nuclear weapons (and other WMD) or, one day, even South Asia). All of these would complement the common purposes shared by the existing regional nuclear-weapon-free zones in Latin America and the Caribbean, Africa, the South Pacific, Southeast Asia, and Central Asia.
