Negotiations on a treaty declaring nuclear weapons illegal are planned for 2017. So far, Germany and others have tried to block this process, even while officially supporting a nuclear-weapon-free world. These contradictions will soon end, however: states will have to pick sides.
On the occasion of his historic visit to Hiroshima, US President Obama called for a moral revolution on nuclear weapons. At the same time, however, his administration is boycotting the current initiative to stigmatize them, and plans to spend over one trillion dollars on the renewal of the US arsenal.
The path of least resistance
German disarmament policy is similarly contradictory: officially it demands a nuclear-weapon-free world, but in fact Germany opposes a prohibition of nuclear weapons. It wants the weapons to disappear, but declines to create the basic legal framework for this to happen. Germany has a broad societal consensus against the last remaining weapons of mass destruction (WMD). Yet since the end of the Cold War, they are rarely ever discussed, enabling Germany to tread the path of least resistance: questioning its reliance on nuclear weapons would require a huge diplomatic effort within NATO. The Foreign Ministry contents itself with getting Russia and Eastern alliance members to at least tone down their rhetoric and stop bringing nukes into the picture. A number of institutional constraints ensure that NATO remains a nuclear alliance.
It is therefore difficult to make out Germany’s actual position on nuclear weapons. To find out where the country really stands, outside pressures will have to be brought to bear.
The end of “constructive ambiguity”
This is now happening. The time for “constructive ambiguity” is slowly but surely running out. The majority of states no longer wants to accept lowest-common-denominator compromises, and instead is forcing the hand with the start of concrete treaty negotiations on an international ban on nuclear weapons. This is when Germany and other NATO countries will need to decide: will they participate in or boycott the negotiations?
While the exact date is not clear, the start of negotiations is now almost inevitable. Even the promoters of the initiative were surprised how forcefully the overwhelming majority of UN members announced their intention to proceed with the ban as soon as possible. This would herald a turning point in the disarmament discourse: the special status of nuclear weapons would finally come to an end, giving them the same legal status as the other WMDs, which have already been banned.
The prohibition will bring about actual progress, challenge decades-old arguments in favor of nuclear deterrence and clarify that nuclear disarmament is a process, not a black-and-white dichotomy. Indeed, countless steps need to be taken in parallel to reduce nuclear dangers. Embarking on this path would start with a clear recognition of the source of this danger, a loud and clear stigmatization of nuclear weapons, if need be even without the participation of the nuclear-armed states.
Ten states, among them middle powers like Argentina, Brazil, Mexico, Indonesia and the Philippines, have formally proposed negotiations should start in 2017. Many states have spoken out in favor: all states of Latin America and the whole of the African Union have explicitly called for a ban. Ireland, Austria, Mexico and New Zealand brought forward especially eloquent endorsements of a near-term ban treaty, as have smaller states like Jamaica, Nicaragua and Palau. All in all, 127 states – two thirds of the international community – have demanded in a joint working paper that negotiations be commenced “urgently”. The Austrian authors of the paper are even more explicit and underscore that the majority want a ban “as soon as possible”. Brazil, Jamaica and New Zealand in their statements emphasized that a majority wants negotiations to begin “immediately”, which is to say independently of the participation of the nuclear-weapon states. Of course, the negotiations can easily drag on in the intricacies of the UN machinery. But the ban is coming, this much is clear.
We from the International Campaign to Abolish Nuclear Weapons (ICAN) have long pushed for this treaty, with the support among others of the Heinrich-Böll-Foundation. When we launched in Germany in 2013, German diplomats and think tanks regarded the proposition as fanciful. Step by step, we were able to convince those states that do not currently rely on nuclear weapons, and today the same think tanks are already planning for the time after the ban. This progress was made possible because the majority of states is now ready to take the next step, even if the nuclear-armed minority and their allies are not on board (this beautiful interactive map shows the nuclear-weapon fans and their arguments).
As Jamaica recently declared, democracy has come to nuclear disarmament. The hitherto silent majority is taking the initiative and has recognized that you cannot wait for the smokers to institute a smoking ban. Finally, the nuclear-armed states are no longer being asked for permission by handing them the power of a veto. This is common sense: even today, a number of states have not ratified the conventions on chemical and biological weapons. Still, their absence in 1975 and 1993 respectively did not keep the rest of the world from banning the weapons anyway. This aspect was taken up by the Austrian Ambassador to the UN in Geneva, Thomas Hajnoczi, when he emphasized that historically speaking, the prohibition of weapons precedes the hard labor of reducing and ultimately eliminating stockpiles.
The OEWG: late democratization of nuclear disarmament
The road towards this realization was a long one. Even the simple creation of the one-off debating forum in Geneva was met with fierce resistance. You may think that an “open-ended working group to bring forward negotiations on nuclear disarmament” (OEWG) would be in the interest of all states. But the mandate to negotiate “concrete effective legal measures, legal provisions and norms” was already too far-reaching for the nuclear-armed and their allies. All nuclear-weapon states boycotted the meetings. Of course, this reticence strengthened the conviction of the nuclear-free that progress is only possible if they are willing to go it alone.
The OEWG presented a unique forum for this, as it operates under the rules of procedure of the UN General Assembly, the most democratic of UN organs. If a minority attempts to block progressive initiatives, as they have done in the past by demanding consensus (i.e. a veto right for all), then the majority can simply call a vote.
In spite of Obama’s enthusiasm for nuclear disarmament and his visit to Hiroshima, it is hardly surprising that the rest of the world has run out of patience. The permanent Conference on Disarmament in Geneva has not been able to agree on so much as a program of work for the past 18 years, let alone actual negotiations. The reason for the complete standstill is the consistent use of the veto, while nuclear-weapon states refuse to negotiate such treaties in any other forum. The nuclear Non-Proliferation Treaty (NPT) operates by the same rules. Because even the steps agreed to by consensus are, however, not implemented when it comes to disarmament, the NPT has also come in for mounting criticism. No wonder: if France and the UK continue to publicly praise the putative value of nuclear weapons, how can we expect Iran and North Korea to understand that they do not have the same right to “deterrence”?
Up to 2 billion deaths
Continuing to accept the blockade of the disarmament machinery would mean to fundamentally misjudge the present danger that continues to emanate from this weaponry. Three international conferences on the humanitarian impact of nuclear weapons have shown how unspeakable the destruction would be, and how the risk remains that one of the many accidents, miscalculations or nuclear terrorism will lead to catastrophe. Again and again, the Red Cross organizations repeat how futile the crisis response would be, saying that it would be all but impossible to build the necessary capacities even if it were attempted.
While the overwhelming majority of states gets by without nuclear weapons, they can only look on as their own populations are exposed to the incalculable risk of nuclear detonations. The consequences would be felt across state borders, and already a “limited” nuclear war (100 of the 15,000 warheads worldwide) may lead to the starvation of between one and two billion people. Nuclear-weapon free-states have a responsibility and an obligation to do everything within their power to protect their populations against these risks.
But how do the nuclear-armed react to the legitimate concerns of the majority? They boycott almost all meetings on the humanitarian impact of such weapons. None of the nuclear-weapon states showed up for the OEWG. The defense of nuclear weapons was instead left up to “nuclear-free” allies, like Germany, Italy, Australia and Canada, whose diplomatic maneuvering caused further resentment.
Contradictory position of NATO states
An example for this was the allies’ insistence that states that are currently boycotting the open-ended working group must not be “excluded”: members of the group should only pursue approaches that hinge on the participation of those states that are currently absent. To this effect, they make “new” proposals that rehash initiatives that already failed 20 years ago. While all states have agreed to these proposals many times and by consensus, doing so again in no way increases the chances that they will be implemented this time around.
The ever-new packaging of the same old proposals further underscores the absurdity. It used to be the “step-by-step process”, which was adopted in 2000 as the “13 steps”, and 10 years later again as the 64 points of the NPT Action Plan. Pending their implementation, they were renamed “building blocks”, and marketed again in 2015 as the “full-spectrum approach”. In February 2016, those states that rely on nuclear weapons in their security doctrines claimed to have new ideas: the “progressive approach”, which, you guessed it, contains the exact same steps.
But can you legitimately qualify measures like the test ban treaty (CTBT) that never entered into force, or the never-negotiated fissile material treaty (FMCT) as “effective”, as demanded by the OEWG mandate? Can these two treaties, which are exclusively concerned with non-proliferation measures, really count as “disarmament”? And can treaties that were negotiated or proposed two decades ago really represent “new” legal norms?
German diplomats assure us that their proposals are serious. And yet things get even more contradictory: Germany and the Netherlands have for years called for more transparency on the deployment and operational plans of nuclear weapons, yet they have not even officially acknowledged to their own populations that nuclear weapons are currently stationed on their own territory, making them into a target – never mind the numbers or precise locations of such weapons. Meanwhile, German fighter pilots train the delivery of weapons of mass destruction with jets expressly fitted for the purpose, which does not exactly contribute to the credibility of Germany’s disarmament policies.
So who is blocking all these sensible and urgent proposals such as the CTBT and FMCT? The exact same nuclear-armed states that, according to Germany, should hold a veto over the negotiation of all further disarmament measures as well. The same states that, in spite of lip service to nuclear disarmament, are pumping billions upon billions into the modernization of their arsenals. The US plans to spend over a trillion dollars over the next three decades on weapons that must never be used under any circumstances. The other nuclear-weapon states have similar plans. France has even gone as far as claiming that the Geneva-based Conference on Disarmament had “proven” that it is the most efficient path towards nuclear disarmament – a forum that has been at a complete impasse since 1998. Instead of disarmament commitments, they offered to update a “glossary of nuclear terms” – this is not a joke! The nuclear-armed live in a parallel universe.
Until these states reduce their reliance on nuclear weapons, we will have to create a lot of pressure. If need be, international law will need to be updated without their participation. We cannot create urgency as long as we afford them a comfortable, veto-wielding chair at the negotiating table.
ICAN has for years been encouraging the international community to courageously lead the way and change the rules of the game, even without the nuclear-armed states. The fact that the combined might of US diplomats and their allies have not come up with a single coherent argument against a ban treaty after many years of brainstorming is the strongest indication yet that we might be on the right path.
Germany’s difficult position
In its security doctrine, Germany relies on NATO’s “extended deterrence”. The US has promised to use its nuclear weapons in the defense of NATO, Japan, South Korea and Australia. This puts these states into a contradictory pickle: on the one hand, they claim nuclear disarmament as a priority and officially hold on to the goal of a nuclear-weapon-free world. On the other hand, they can hardly criticize their “protectors” for their WMDs, and defend the status quo as best they can.
The most popular strategy to this effect is to allege exaggerated claims on the other side of the debate, and proceed to falsify those claims. For example, a prohibition will not “guarantee” disarmament – which no-one has ever claimed, as nothing is ever guaranteed in the highly political sphere of international law. In May in Geneva, Germany also lamented attempts to change customary international law “via the back door” – a devious charge, as customary law can only emerge if not a single state publicly opposes a new norm.
Further, assertions include that a ban treaty would be ineffective and should therefore not be tried, but would at the same destabilize the non-proliferation regime or even reduce the pressure on nuclear-weapon states. Poland and the US even claimed that a ban treaty would increase the danger of nuclear detonation. So the ban would be both inconsequential AND dangerous. The obvious contradiction has not kept NATO states from repeating both arguments in parallel.
The putative weakening of the NPT remains the most interesting argument, as it flies in the face of all principles of international politics. As international law cannot be enforced, its legitimacy is often strengthened through repetition and overlap. Complementary treaties, instruments and statements reinforce each other. For non-proliferation, this is welcomed: the NPT was complemented by the CTBT, the informal Nuclear Security Summits, and perhaps in the future by the FMCT. A prohibition, which would obviously serve to implement Article VI of the NPT and more clearly spell out the obligation to disarm, would allegedly endanger it somehow. Ironically, the true reason for the current weakness of the NPT is the inability of nuclear-weapon states to make good on the disarmament promises made at NPT conferences. Experts like Harald Müller (PRIF) have argued as early as 2006 that the disarmament dimension of the NPT is, for structural reasons, insufficient.
Luckily, NATO member Canada has spelt out this argument, which was also employed by Germany, in further detail in a working paper. The concern is that states that boycott the ban will call into question their NPT compliance. This analysis is, as our colleagues at Wildfire have argued before, correct. If a state is not willing to declare nuclear weapons unequivocally illegal, then this is hardly compatible with Article VI of the NPT. This article commits all state parties, not just the nuclear-armed, to pursue effective measures on nuclear disarmament in good faith, including through additional legal measures.
A boycott of a ban treaty is therefore difficult to reconcile with NPT obligations. However, this is not due to the ban treaty. The difficulty arises from the questionable position of those states that fear the concrete implications of a ban. These states already have a difficult relationship with Article VI. Making these contradictions obvious for everyone to see does not weaken the NPT. The weakening arises from the fact that these states never intended to disarm to begin with.
Another argument is Ukraine, and the renewed tensions between NATO and Russia. That military conflict in Europe once again seems conceivable should, if anything, strengthen efforts to keep nuclear weapons out of the saber-rattling. Those who ascribe an important role to nuclear weapons in this context, or even blame Ukraine for giving up its nuclear weapons in the mid-90s, are in fact promoting nuclear weapons and their proliferation and acting irresponsibly. This holds for conversations in the pub as much as it does for diplomats.
Germany’s diplomatic machinery shares many of these concerns. The confusion over customary international law or the weakening of the NPT does not arise from a lack of understanding of international law. Germany is just lacking the political will to confront its allies with some unpleasant questions.
Security at the expense of others
A fundamental conflict that cannot always be openly discussed lies at the root of this unwillingness: a minority of states thinks they need “nuclear deterrence” for their security. This requires that adversaries be threatened with the use of nuclear weapons as credibly as possible, 24/7. They hold on to this belief, even though deterrence has clearly failed often enough. Nonetheless, they subject all other states to continuous danger while elevating nuclear weapons to a status symbol and supposed security guarantor.
The hitherto silent majority is now demanding that their security interests also be taken into account – via a drastic reduction with a view to the eventual elimination of the last WMD. The nuclear-armed counter that the “security dimension” of the weapons should not be ignored. Yet precisely this security dimension – the catastrophic humanitarian consequences that are supposed to make nuclear weapons an instrument of deterrence – constitute, from the perspective of states not partaking in any deterrence relationships, a direct threat to their national security. The security of all humans, and not that of a few privileged states, constitutes the core of the Humanitarian Initiative and the renewed push for the prohibition of nuclear weapons.
In the end, the arguments against a ban are untenable precisely because they are intended to conceal the true reason that stands in the way of a ban treaty – one that comes close to constituting a straightforward breach of the NPT: the nuclear-weapon states and their allies simply have no plans to disarm.
Thus, a ban treaty would finally create clarity: which states are really in favor of a nuclear-weapon-free world, and which ones are only claiming to be, while otherwise playing for time?
This effect is already being felt by some governments. Dutch and Norwegian Members of Parliament have, thanks in part to the debates in the OEWG, found out that their own governments are trying to prevent the prohibition of nuclear weapons. Since these parliamentarians were assuming the opposite to be the case, this led to heated debates and finally resolutions that will at least constrain these governments’ room to maneuver: if negotiations on a ban treaty begin, both NATO states are in principle committed to participate.
From the OEWG to the ban treaty
These are highly relevant indications at a critical juncture. Taking a step back, one could even reduce the whole dynamic within the OEWG to the overarching question: how many states would participate in ban treaty negotiations, if these were to begin in 2017? Since 2012, more and more states have joined the Humanitarian Initiative, which culminated in the Humanitarian Pledge to close the legal gap on nuclear disarmament, co-signed by 127 governments. Ever since, a “critical mass” is in principle ready to take the leap into the unknown, and go ahead even without the nuclear-armed.
A critical mass suffices to kick-start negotiations. But the aim must remain to maximize the number of states participating, including those on the fence. The ban becomes more effective the more sign up, for example by helping to extend the prohibition of the funding of nuclear-weapon-related commercial activities to an ever larger share of international banks. This is why the OEWG was set up as a UN-mandated forum, open and inclusive for all states. Many at ICAN had been slightly less patient and called on South Africa to unilaterally organize a negotiating conference as a natural continuation of the humanitarian impact conferences.
As things stand, the OEWG will adopt a summary of its deliberations and direct recommendations to the UN General Assembly in August, paving the way for a further UN resolution to be adopted in November/December, which may then mandate a conference for the actual treaty text negotiations. Independently of possible diplomatic tricks following the release of the first draft summary in early August, there can no longer be any doubt that the majority for such a course of action is rock-solid.
Naturally, some NATO states will continue to evoke the impression that they will simply not partake in any such negotiations. But as soon as the majority goes ahead, many nuclear allied states can be expected to come around, if only because it would be in the interest of their nuclear-armed protectors to be at least indirectly represented at the negotiating table.
The front against a treaty ban of nuclear weapons is thus crumbling. Six EU states have joined the Humanitarian Initiative and NATO members Iceland and Denmark are sympathetic to it. With Norway and the Netherlands, two more have committed to take part in negotiations. In other words, Western and EU states that are not committed to the consensus-based formulation of nuclear policy within NATO have a supportive approach towards the ban.
Germany could greatly profit of nuclear ban
The realization that Germany, as a peace-loving nation committed to the respect of human rights, is coming to the defense of the worst of all WMDs, is a difficult pill to swallow. A representative study commissioned by ICAN Germany and IPPNW in early 2016 showed that an overwhelming 93 percent of German citizens support a treaty prohibition of nuclear weapons. The people of Germany presume that they have a broad societal consensus against nuclear weapons – and are unaware of the fact that their government is undermining their position.
The German government knows that its position is a hard sell. A controversy erupted in December 2015, underscoring how much attention the topic can still generate today: Germany had voted against the UN resolution promoted by neighboring Austria, which demanded a closing of the legal gap on nuclear disarmament – voting “No” rather than abstaining is a strong diplomatic statement. A series of videos of German federal government press conferences highlighted how government spokespersons struggled to respond to video journalist Tilo Jung when he confronted them with our press release. The videos went viral, reaching over half a million views.
If Germany were to boycott negotiations on a treaty banning nuclear weapons next year, the outrage will only grow. At the same time, this could come in handy for German diplomats and their reading of the Humanitarian Initiative. Clearly, they cannot wilfully maneuver themselves into an awkward spat with NATO’s nuclear-armed members. But in a dispassionate assessment, the German bureaucracy and think tanks do agree that human security should lie at the core of their considerations, not zero-sum national security at the short-sighted expense of the majority. After all, we share the worries surrounding the humanitarian consequences, and the government has for years been trying to convince NATO partners and the US to withdraw nuclear weapons from German territory, with multiple parliamentary resolutions passed to this effect.
A ban treaty would constitute the perfect backdrop against which to get NATO partners to acknowledge that some NATO states will indeed want to ratify the prohibition of nuclear weapons. A ban would generate sufficient domestic pressure on the Germans to overcome challenges within NATO and justify a tailored deterrence architecture that does not necessarily include all allies. NATO has always been flexible enough for such opt-outs: France has not participated in the nuclear components of the alliance for decades, while Denmark, Iceland and Norway have long stopped allowing dual-capable allied ships from entering their harbors.
Indeed, the NATO treaty is silent on nuclear issues. The political, but not legally binding Strategic Concept defines NATO as a “nuclear alliance”, but also formally commits it to “create the conditions for a nuclear-weapon-free world”, even while the latest NATO summit in Warsaw further backtracked on NATO’s commitments in this regard. At the end of the day, NATO’s constraints are a double-edged sword: on the one hand, NATO hampers the development of new international law, as allies often move at the speed of the slowest member. On the other hand, once new treaties such as the ban on landmines (1997) and cluster munitions (2008) are ratified, NATO helps extend their reach even into the military planning and rules of engagement of those states that have not (yet) ratified them.
It goes without saying that nuclear-free countries cannot eliminate nuclear weapons. But they can codify their conviction that the last weapons of mass destruction are simply unacceptable: exactly the “moral revolution” Obama so eloquently demanded in Hiroshima. To achieve this, it is of fundamental importance that Germany and other progressive NATO states join the initiative for a ban of nuclear weapons under international law. Last year, Germany abstained from the UN resolution establishing the OEWG. Will Germany vote “Yes” this time around?
The time for contradictory excuses and procrastination is running out. The overwhelming majority of UN members has made their intention clear and can no longer be stopped. At the latest when negotiations on a treaty banning nuclear weapons begin in 2017, the question as to the positioning of Germany and other NATO states will answer itself.
They will have to make up their minds: should nuclear weapons be legal, or illegal?