Attaining a Nuclear-Free Future

The Law on Nuclear Disarmament

Until recently, there had been a legal gap in the international framework for prohibiting and eliminating nuclear weapons. While several treaties aiming to regulate nuclear weapons have been drawn up, signed, and ratified, none have attained irrefutable success. These include the Nuclear Non-Proliferation Treaty (NPT) of 1968 and the Comprehensive Test Ban Treaty (CTBT) of 1996. While these treaties, and those like them, have received international acclaim, they can hardly be considered to have truly succeeded in nuclear non-proliferation. This failure had long been attributed to a lack of specific prohibitions of recourse to nuclear weapons in these treaties.

However, more recently, the Treaty on the Prohibition of Nuclear Weapons (TPNW) came into effect in January 2021. The international community was quick to herald this as an international treaty that introduced general prohibitions on the development, testing, acquisition, possession, and stockpiling of nuclear weapons. Yet, of the 193 member states of the United Nations (UN), only 92 states are signatories to this treaty, calling into question its eficacy¹“Treaty on the Prohibition of Nuclear Weapons” (UNODA Treaties) https://treaties.unoda.org/t/tpnw A further concern is that these 92 signatories do not include the nuclear weapon states, namely the United States, United Kingdom, China, Russia, France, India, and Pakistan. Moreover, Israel, whose nuclear status is uncertain, is not a party or signatory to the treaty, and neither is Iran, whose nuclear potential has long been contentious. In light of these facts, the success of the TPNW is obstructed. Despite this, many countries remain overwhelmingly committed to disarmament and act as examples for the rest in non-proliferation.

 The South African Experience

South Africa began to develop nuclear weapons in the 1960s. It built its first nuclear reactor in 1965, with American help going as far as providing it with highly enriched uranium.²“South Africa: Why Countries Acquire and Abandon Nuclear Bombs” (Council on Foreign Relations) https://world101.cfr.org/global-era-issues/nuclear-proliferation/south-africa-why-countries-acquire-and-abandon-nuclear The NPT was first opened for signature in 1968, with the objectives of preventing the spread of nuclear weapons and their technology while promoting the peaceful use of nuclear energy and general and complete nuclear disarmament.³“Treaty on the Non-Proliferation of Nuclear Weapons (NPT)” (United Nations) https://www.un.org/disarmament/wmd/nuclear/npt/text South Africa opted out of signing this treaty as it felt internationally isolated, largely due to its apartheid system.⁴Ibid However, the South African government at the time remained committed to its nuclear program, considering it an essential counter to security threats from neighboring countries. These threats primarily arose from the independence of Mozambique and Angola in 1975 and the imminent independence of modern-day Zimbabwe.⁵Ibid South Africa perceived these independence movements as threats due to their involvement with communist forces.

Despite this initial dedication to the nuclear route, the South African government shut down its nuclear program in 1991, after which it joined the NPT as a non-nuclear country.⁶Ibid Domestic politics surrounding the end of the apartheid system, international relations, and national security are among the factors influencing this change. Primarily, the promise of international reintegration may have appealed to a country that had been ostracized for so long. Before it gave up the apartheid system and its nuclear weapons, South Africa was plagued by European trade sanctions and global oil embargoes.⁷Ibid Regardless, if critically examined, the South African experience will yield a wealth of information not only on a country’s motivations to embark on a nuclear program but also to dismantle the same.

 The Ukrainian Experience

Ukraine’s experience differs from South Africa. Upon Ukrainian independence from the Soviet Union in 1991, 1,900 Soviet strategic nuclear weapons, 2,650-4,200 tactical nuclear weapons, and 176 intercontinental ballistic missiles (ICBMs) were left on Ukrainian territory.⁸“Nuclear Disarmament Ukraine” (The Nuclear Threat Initiative February 17, 2023) https://www.nti.org/analysis/articles/ukraine-nuclear-disarmament/ Instead of taking control of these weapons, Ukraine signed the Trilateral Statement with Russia on January 14th, 1994 to return the weapons in exchange for security assurances. By 1996, the country had returned these warheads with US aid.⁹Ibid

Despite its cooperation, Ukraine was forced to face Russian aggression in 2014 with the latter’s annexation of Crimea. This violated the 1994 agreement between the two countries. Later in 2022, Russia once again invaded Ukraine in violation of the agreement and plunged the two countries into an ongoing conflict. During this conflict, Russia has used nuclear coercion against Ukraine, while the latter is left helpless after having given up the nuclear weapons on its territory.¹⁰Ibid

It is unclear whether the situation would have been different had Ukraine never agreed to hand over the nuclear weapons on its territory. The Ukrainian experience continues to haunt other nuclear weapon states by highlighting the dangers of disarmament. This significantly damages the non-proliferation mission. However, this example also highlights a deep lack of trust and cooperation from at least one front, signaling that the international community may need to focus more on diplomacy and confidence-building when approaching nuclear non-proliferation.

Policy Approaches to Nuclear Non-Proliferation

Confidence Building Measures: The Indo-Pak Experience

International efforts to achieve nuclear non-proliferation have long focused on the role of confidence-building measures (CBMs). UN Member States have noted the importance of CBMs in creating an environment that facilitates significant reductions in nuclear arsenals while encouraging the reduction in hostility between nuclear states.¹¹UNGA ‘Report of the Open-ended Working Group Taking Forward Multilateral Nuclear Disarmament Negotiations’ UN GAOR 71st Session UN Doc A/71/371 [2016]

A prominent example of the use of CBMs in a nuclear region is that of India and Pakistan. With both countries embarking on public nuclear programs in 1974 and 1998 respectively, the need for concrete measures to avoid a nuclear exchange was strongly felt in South Asia. Among the first attempts of CBMs was the Lahore Declaration of 1999 and the subsequent Lahore Memorandum of Understanding (MoU), which included nuclear-related CBMs.¹²Noor S, “Nuclear Confidence-Building Measures and Peace Making in South Asia” (2012) 32 Strategic Studies 134 These included agreements to engage in bilateral consultations on security concepts and nuclear doctrines and to provide each other with advance notification of ballistic missile flight tests. While the two countries failed some nuclear CBMs, there have also been successful instances. For example, in 1988, the two countries signed the Agreement on the Prohibition of Attack against Nuclear Installations and Facilities, ratified later in 1992.¹³Ibid Since 2005, the Agreement on Advance Notification of Ballistic Missile Tests has also been in effect.¹⁴Ibid

However, the issue arises in identifying common ground. Both countries wish to achieve nuclear stabilization on their terms, resulting in many CBMs falling apart.¹⁵Ibid In the example of India and Pakistan, both countries are plagued by unique insecurities aggravated by the Kashmir issue and a desire to attain strategic leverage over the other. The progress of CBMs here seems bleak to many. Such a position is not entirely unwarranted, considering the history between the two countries, which results in a profound lack of trust. This lack of confidence is what “feeds on contemporary strategic concerns and aggravates the situation, leaving less space for peace overtures.”¹⁶Ibid

However, a bleak outlook does not necessitate that proponents of CBMs should give up. Rather than formulating new approaches, arbitrators should continue to build on the foundation laid down by existing CBMs and agreements. A focus on reiterating and reinforcing specific measures that have been complied with in the past should be achieved.¹⁷Ibid. In this approach, the successful 1988 Agreement on the Prohibition of Attack Against Nuclear Installations and Facilities presents itself as a viable candidate to consider. Under this agreement, India and Pakistan have exchanged lists of their nuclear installations annually, even in times of crisis.¹⁸Ibid It can thus be studied as an example on which other CBMs can be modeled. These could include joint military exercises, regular bilateral discussions about nuclear strategy and technology for peaceful uses, and more. Such measures can ensure the continued success of nuclear CBMs, even if progress on this front is slow.

Diplomacy in Disarmament

The NPT is inarguably the most widely subscribed to disarmament treaty. To date, 93 countries are signatories to the treaty, while 191 states are party to it.¹⁹‘Treaty on the Non-Proliferation of Nuclear Weapons’ (UNODA Treaties) Alongside this, the NPT also highlights the importance of diplomacy in disarmament through Articles X and VIII. Article X(2) provided a conference to be held 25 years after the treaty’s entry into force to decide whether it should be indefinitely extended.²⁰Dhanapala J, “The Management of NPT Diplomacy” (2010) 139 Daedalus 57 Article VIII(3) includes review conferences at five-year intervals.²¹Ibid These articles allow nuclear weapon states (NWS) and non-nuclear weapon states (NNWS) to employ diplomatic efforts to support the non-proliferation agenda. This diplomacy was noted even during the formation of the NPT. For instance, Article VI of the treaty – also known as the disarmament clause – was born from the diplomatic efforts of developing NNWS, such as Mexico.²²Ibid This article states that all parties to the treaty must negotiate in good faith a cessation of the nuclear arms race and nuclear disarmament, alongside general and complete disarmament of nuclear weapons.²³“Treaty on the Non-Proliferation of Nuclear Weapons (NPT)” (United Nations) https://www.un.org/disarmament/wmd/nuclear/npt/text

The role of NPT diplomacy in nuclear disarmament becomes more apparent through the examples of the review conferences held in 2000 and 2005. In the 2000 NPT Review Conference, the landmark Final Declaration with its ‘13 Steps’ was adopted, listing the practical efforts states could make to abide by Article VI.²⁴Ibid. They ranged from states vowing to ensure early entry into force of the CTBT and unilateral nuclear reductions by NWS to placing excess military fissile materials under the IAEA’s supervision.²⁵Ibid This Final Declaration is a stellar example of active NPT diplomacy in reaching an optimistic conclusion. It even sported an “unequivocal undertaking” of the NWS to achieve nuclear weapon elimination.²⁶Ibid

In contrast, the 2005 Conference proved to be polarized from start to finish. The political climate leading up to the Conference seems to be the main reason for its failure. In 2002, the Bush administration’s Nuclear Posture Review envisaged nuclear weapon usage, while the US and its allies invaded Iraq in 2003.²⁷Ibid This strained situation resulted in the Bush Administration rejecting the 2000 Final Declaration. The decision of member states and delegations present at the 2005 Conference to thus turn their backs on NPT diplomacy in light of the politics of the day highlighted the interplay between diplomacy and politics.

The above examples demonstrate how the NPT, by its very nature, encourages diplomacy in disarmament through its conferences. It leaves it up to Member States to ensure continued diplomatic endeavors in the disarmament process, for without these efforts, disarmament will remain a far-fetched dream. A “political will” to make NPT diplomacy work is thus necessary for the treaty’s success.²⁸Ibid

Considering the reasoning behind why states want to retain their nuclear weapons can also highlight why diplomacy in nuclear disarmament has been failing. At present, NWS wish to retain their weapons as long as other states have them. The Ukrainian experience highlights why this might be the case – no state wants to be vulnerable to nuclear aggression. In the case of high-tension regions such as South Asia with India and Pakistan, a significant reason to retain nuclear arsenals seems to be deterrence. Neither country wants to give up its weapons for fear of the other launching a nuclear attack. These factors signify that the most critical goal for nuclear diplomacy is building deep trust between NWS, since without it, no state would voluntarily give up its nuclear arsenal.

Abiding by Article VI and the Principle of Good Faith

In the International Court of Justice’s 1996 Advisory Opinion on the “Legality of the Threat or Use of Nuclear Weapons,”²⁹Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Rep 96 the court recognized the importance of article VI of the NPT and its obligation on parties to the treaty to “negotiate in good faith a nuclear disarmament.”³⁰Ibid In the court’s understanding, this obligation was not one of mere conduct. It was an obligation to achieve the “precise result” of nuclear disarmament. The article goes as far as prescribing negotiations to achieve this disarmament.³¹“Treaty on the Non-Proliferation of Nuclear Weapons (NPT)” (United Nations) https://www.un.org/disarmament/wmd/nuclear/npt/text And the primary ingredient for successful negotiations is the principle of good faith – that all member states act to inspire trust and confidence in international cooperation.

In light of the ICJ’s opinion, the role of negotiations and diplomacy in achieving nuclear disarmament attains even greater weightage. With the TPNW now offering further support to the NPT, particularly to Article VI, the status of nuclear non-proliferation does not seem as bleak as it once did. However, without international cooperation on non-proliferation, the TPNW might be ineffective. Hence, operating in good faith, with the common goal of genuinely achieving nuclear disarmament, is necessary to ensure international abidance by article VI and the TPNW.

Unfortunately, NWS are refusing to abide by this article, and it is also unlikely that they will unless there is significant international pressure on them. However, because most of the NWS are highly influential states, even imposing international pressure on them is unlikely to succeed. Considering this dilemma, the international community has long been at a stalemate where nuclear non-proliferation is concerned. This stalemate cannot be resolved without the cooperation of NWS.

 Conclusion

The policy approaches considered above barely scratch the surface of the steps the international community can take regarding nuclear non-proliferation. However, they can act as an effective place to start. Only by learning from the past, building trust and confidence, and abiding by existing international legal instruments can we work towards a nuclear-free future.