Australia has drawn criticism for opposing UN negotiations to prohibit nuclear weapons.  Foreign Minister Julie Bishop argues: 'We must engage, not enrage nuclear countries', and dismisses the proposal for a ban as an 'emotionally appealing' approach that would only 'divert attention from the sustained, practical steps needed for effective disarmament.'  Is Ms Bishop right, will the proposed negotiations be counter-productive, will they enrage nuclear-armed countries? 

To be clear, the recent vote by Australia was not against a nuclear weapon ban as such, but against adoption of a report to the General Assembly on the negotiation of a ban.  This report, which was by an open-ended working group of the General Assembly and had been expected to be adopted by consensus, discussed a proposal for the General Assembly to commence negotiations on such a treaty in 2017.  The report does not recommend these negotiations commence, noting there was no agreement on this in the Working Group.  Rather, it recommends 'that additional efforts can and should be pursued to elaborate concrete effective legal measures, legal provisions and norms that will need to be concluded to attain and maintain a world without nuclear weapons', and reaffirms the central importance of the NPT (Nuclear Non-Proliferation Treaty) in these efforts.

It is hard to see how Australia could take exception to this recommendation.  The Working Group discussed the need for complementary and confidence-building measures, such as nuclear arms reductions, nuclear weapon transparency measures, support for the Comprehensive Test-Ban Treaty, support for nuclear-weapon-free zone treaties, negotiation of a fissile material cut-off treaty, and so on.  These various measures correspond to the stepwise approach that Australia has long supported and which is set out, for example, in the 2009 report of the Australia/Japan International Commission on Nuclear Non-Proliferation and Disarmament (ICNND).

Consistent with a stepwise approach, the Working Group report notes that a treaty prohibiting nuclear weapons would be only an interim or partial step toward nuclear disarmament as it would not include measures for elimination and would instead leave measures for the irreversible, verifiable and transparent destruction of nuclear weapons as a matter for future negotiations.  Importantly, the report also notes that a prohibition would contribute to the progressive stigmatisation of nuclear weapons.

It is for the General Assembly to decide whether to commence negotiations on a treaty prohibiting nuclear weapons.  The vote brought on by Australia was premature, the time for a vote will be when the Working Group report is considered by the General Assembly.  We must assume the Australian government will continue to oppose negotiations.  Unfortunately this reflects a simplistic view of the substance and potential value of such negotiations.

Proponents of a ban on nuclear weapons see the Chemical Weapons Convention (CWC) as an important precedent.  The CWC prohibited development, production, stockpiling and use of chemical weapons, and established a mechanism for the progressive elimination of these weapons.  An essential aspect of the CWC was the delegitimisation of chemical weapons, emphasising that the further development and production of these weapons was incompatible with the commitment to eliminate them. 

A fundamental difference is that countries with nuclear weapons are not yet ready to eliminate them (South Africa, which divested itself of nuclear weapons in 1990, is an honourable exception).  Perhaps more to the point, the political and strategic conditions needed for total elimination of nuclear weapons have yet to be established.  But delegitimisation of nuclear weapons would underscore that modernisation and expansion of nuclear arsenals is inconsistent with the commitment made by NPT parties to the eventual elimination of nuclear weapons.

A nuclear weapon ban is not an outlandish proposition.  Such a ban has already been agreed by NPT parties.  In the case of non-nuclear-weapon states, the NPT bans nuclear weapons absolutely.  In the case of the nuclear-weapon states, a prospective ban is implicit in the commitment by these states to disarm.  Bans have also been agreed for those regions covered by nuclear-weapon-free zone treaties.  Currently there are eight such treaties, applying to Latin America, the South Pacific (to which Australia is a party), South East Asia, Africa, Central Asia, Antarctica, outer space, and the seabed.

The idea of a ban on nuclear weapons is inextricably linked to the question of their lawfulness, whether they can ever be used legally.  This question was considered by the International Court of Justice in a 1996 advisory opinion.  The Court found: 'There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such', but also concluded that their indiscriminatory nature, destructive force and environmental consequences were such that 'the use of nuclear weapons would generally be contrary to the rules of international law … and in particular the principles and rules of humanitarian law'.  Ultimately the Court decided it could not 'conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.'  While this outcome disappointed some, the key point is that any use of nuclear weapons must comply with international humanitarian law and it seems extremely unlikely this would be possible.

It seems to be the Australian government’s view that nuclear deterrence is essential to international security, that the threat of mutual annihilation saved us from World War III.  This overlooks the frighteningly large number of mistakes and accidents that could easily have led to nuclear war between the United States and the Soviet Union/Russia.  We can’t assume that good luck will hold forever.  Further, the number of countries with nuclear weapons has grown since Cold War days.  Two of these, India and Pakistan, are engaged in a nuclear arms race today. 

The point was made by the 2009 ICNND report, and by many others, that while nuclear weapons exist additional countries will want them, and the world can never be safe against their use, whether deliberate, by mistake, or by accident.  Combine this conclusion with the compelling legal arguments that use of nuclear weapons cannot be lawful, and the legal obligation set out in Article V1 of the NPT for all parties to that treaty to 'to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament' , and it is obvious that establishment of a negotiating framework that can lead to further nuclear arms reductions and the ultimate elimination of nuclear weapons must be an immediate priority.

To date negotiations on nuclear arms reductions have taken place only between the US and Russia (or the former Soviet Union).  There is a need to expand such negotiations to include the other NPT nuclear-weapon states (UK, France and China) and the nuclear-armed countries outside the NPT (India, Pakistan, North Korea and Israel).  The UN General Assembly, or a process established by the General Assembly, would seem a good place for such inclusive negotiations.

Obviously, as Ms Bishop says, 'disarmament cannot be imposed.'  But this is not what is being proposed.  Disarmament must be a stepwise process.  Some of these steps are possible in the near term, others will take much longer.  Not all the nuclear-armed countries will be willing to engage at the outset, but there are some steps they will see as being in their interest.  Any steps that can reduce tensions, halt arms buildups, and broaden arms reductions have to be worth taking.  What is needed is leadership and a process.  Establishing a process will focus minds and help create the conditions in which progress can be made.  We cannot afford to oppose any serious efforts to this end.

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