Nuclear Ban Objections and Answers


Nuclear Abolition News | IDN
By Frederick N. Mattis*
IDN-InDepth NewsViewpoint

ANNAPOLIS, USA (IDN) - While the 1968 nuclear Non-Proliferation Treaty [NPT] adjures its signatory states to pursue nuclear disarmament, there is no NPT provision for specific progress toward that goal. The view is now spreading that the time has come for a new treaty, to replace the NPT and to eliminate all nuclear weapons. Several objections to such a treaty [convention] are summarily responded to here.

1. If a few states, or even just one, refused to join a nuclear ban treaty, it would be weak and inadequate.

As a condition of treaty entry into force, all states would have to join the nuclear ban – or else states such as the USA would not join. The nine current nuclear weapon states do have their reasons for maintaining their arsenals; but most are grounded in the reality of other states' nuclear possession (which would disappear under a nuclear ban), plus in some cases now thankfully-attenuated Cold War power-bloc relationships.

After introduction for states' signatures of a worldwide nuclear ban treaty, the import and influence of "lingering" or atavistic rationales for nuclear possession will likely wane in states' estimations and come to be outweighed by the fundamental benefits to all people and states of a world without nuclear weapons: freedom from nuclear war or attack, freedom from possible "false-alarm" nuclear strike, and elimination of risk of terrorist nuclear acquisition from a state’s arsenal.

Since unanimity of accession by states to the nuclear ban treaty would be required for its entry into force, the treaty advisedly should proclaim that "future states" must abide by the treaty's prohibitions of nuclear weapons and non-safeguarded fissionable materials and must promptly accede to the treaty. Strictures (such as these) on "future states" are unprecedented for a treaty but justified by the unanimity of accession by extant states before entry into force. Also, the treaty would proclaim that it applies everywhere to cover realms such as space, the oceans, and non-state or ambiguous terrestrial areas.

2. Even if states' nuclear arsenals are abolished under a unanimously joined treaty, that would not prevent states from stockpiling chemical or biological weapons.

This concern can be greatly eased by a nuclear ban treaty provision requiring states to be parties to the 1993 Chemical Weapons Convention (CWC) and the 1972 Biological Weapons Convention (BWC) before signing the nuclear ban treaty. Most states, including the USA and Russia, are already parties to the chem-bio bans; and only in the range of five to eight states are widely considered as maintaining active chemical or biological weapons programs (or both).

For that handful of states (including Egypt, Syria, Iran), the recompense of liberation from the supreme, nuclear threat would help induce them to formally renounce those weapons by joining the CWC and BWC – especially because most such states’ [presumed] chemical and/or biological weapons are largely in opposition to nuclear weapons possessed by another state or states.

Certainly today's nuclear weapon states would applaud a requirement that states formally renounce chem-bio weapons before signing the nuclear ban, and thus this provision would be an added inducement for the nuclear weapon states to join the prospective, worldwide nuclear ban. Also: if, prior CWC-BWC accession was not required, then at least one state (Israel) almost certainly would not join the nuclear ban, and it would not enter into force.

3. A state could simply withdraw from an enacted nuclear ban and thereby destroy the nuclear weapons-free world.

The nuclear ban treaty, in addition to being permanent (as are many treaties), would be "non-withdrawal." Further, states would be pledged by nuclear ban terms to "non-withdrawal" from the CWC and BWC, once the nuclear ban achieves unanimous accession by states and enters into force – so that then all states would be permanent parties to the three agreements banning nuclear, chemical, and biological weapons.

Treaties in general do permit parties to withdraw. If, though, a nuclear ban treaty likewise allowed legal withdrawal, states such as the USA would be reluctant to join due to apprehension that a state might "capriciously" but legally and therefore quite easily withdraw from the enacted treaty and thereby end the benefits of a nuclear weapons-free world. Also, if withdrawal was permitted there would be concern that states might be tempted to hint at withdrawal (with it being "perfectly legal"), in an attempt to gain leverage over other states on some future geopolitical matter.

The looming question then is: with "withdrawal" not permitted, what if a state did transgress the worldwide treaty – in effect, withdraw from it – and build or attempt to build nuclear weapons? In event of such material breach of the treaty, a state if it deemed it necessary could "ignore" (for duration of the breach) the nuclear ban treaty under color of Article 60(2) of the Vienna Convention on the Law of Treaties (the "treaty on treaties").

However, the nuclear ban would require a state, before undertaking any otherwise treaty-prohibited activity in response to the here-posited "material breach," to publicly proclaim which state it arraigns as in such breach, and to present "attained credible evidence" of the charge. This mandated prior naming of the state-in-breach would prevent a state from being able to claim any justification for undertaking or attempting to undertake treaty-prohibited activity in secret and later on claiming it did so because another state "was already in material breach."

After cessation of a state's initial material breach of the treaty, states would be legally bound to return to treaty terms – because the treaty does not permit withdrawal. In the event that more than one state had redeveloped some nuclear weapons, then it is likely that world opinion would successfully urge them to confer and agree to simultaneously return to full treaty participation.

(With the above said, the chance of initial, pernicious material breach would be miniscule; see #5 below.)

4. A state could undermine the treaty, or gain advantage on other states, by enacting national (domestic) treaty implementing legislation that is inadequate or contradictory to treaty terms, or by submitting false or misleading nuclear declarations (for baseline verification purposes) to the treaty regime.

Attendant to the above two phases of the treaty process (which both occur before warhead elimination even begins), the treaty would permit a state to publicly object and thereby halt further treaty steps until the state withdraws its objection, presumably after the situation of concern is resolved.

The reason is that in negotiating a nuclear ban treaty, some states will probably insist that they maintain under treaty terms their specified autonomy of judgment and prerogative to suspend further treaty implementation with respect to these crucial two initial phases – i.e., states' institution of suitable national treaty implementing legislation, and then states' submission of treaty-required nuclear-related "declarations," with this latter phase encompassing issue of co-operation by states on verification of declarations (which, of course, would be evaluated and reported on by the nuclear ban inspection regime).

Notwithstanding, it is very likely that all treaty implementation phases, including above crucial ones of adequate, treaty-consonant national implementing legislation by states plus good-faith nuclear declarations and cooperation in their verification, would indeed be carried out by states with diligence and good faith – so no state would be "provoked" by another to "suspend" (in the face of world scrutiny, though) further implementation of the treaty.

The extreme probability of good-faith compliance with nuclear ban requirements is based primarily on the unprecedented geopolitical, legal, psychological, and moral impact of unanimous accession by states before treaty entry into force.

5. Even with the nuclear ban fully and successfully enacted, a state nonetheless at some future time could break out of the worldwide treaty and thereby end the nuclear-free world and its security benefits.

The chance of material breach or breakout in all future history cannot be said to be scientifically zero but would be miniscule, in part because of recognition that the benefits of a nuclear weapons-free world to all states and people can only be maintained by fealty of all states to the nuclear ban treaty. A further deterrent to cheating or to overt breakout would be the treaty’s equal treatment of states – unlike today's Non-Proliferation Treaty, with its five "nuclear weapon" parties. States would also unerringly foresee that opposition to a pernicious violator of the unanimously-joined treaty would pour forth, on multiple levels, from all the world’s other states.

*Frederick N. Mattis is the author of “Banning Weapons of Mass Destruction” (ABC-CLIO/Praeger Security International; ISBN: 978-0-313-36538-6). This article first appeared on (IDN-InDepthNews/15.07.2011)

2011 IDN-InDepthNews | Analysis That Matters

Follow us on Twitter and Facebook:

Previous IDN-InDepthNews articles by the writer:
North Korea and the Voyage to a Nuke-Free World
Five Reasons Why Israel Should Back Nuclear Weapons Ban