9 weeks until negotiations- What are we banning?

There are now nine weeks left until negotiations begin on a nuclear ban treaty, and the question of what exactly is being banned is a good one to ask. Since last week’s blog, there was an excellent thought piece put forward by Kjølv Egeland: Four questions for nuclear ban treaty negotiators. I strongly recommend it as a way to look at the upcoming negotiations from a different perspective. It also begins with the question of scope:  what will be banned under the treaty?

Key Principles

ICAN has laid out principles for a nuclear ban,  that states negotiations should establish a non-discriminatory international legal instrument that would prohibit its parties, their nationals, and any other individual subject to its jurisdiction from engaging in the development, production, testing, acquisition, stockpiling, transfer, deployment, threat of use, or use of nuclear weapons, as well as assistance, financing, encouragement, or inducement of these prohibited acts. PAX is an ICAN member and supports these principles.

The Open Ended Working Group on taking forward multilateral nuclear disarmament negotiations (OEWG) suggested the scope of a prohibition could include prohibitions on the development, testing, including subcritical experiments and supercomputer simulations, production, acquisition, possession, stockpiling, transfer, use and threat of use of nuclear weapons, as well as on the production of weapons-usable fissile material.

Negotiators will have to decide what general prohibitions to include in the new treaty. Remembering that this treaty comes from the need to prohibit weapons designed to be inhumane and indiscriminate should remain a guiding principle.

What is a nuclear weapon?

Questions about definitions also arise during negotiations, and are sometimes considered in relation to the question of scope. The OEWG used the same definition as the Treaty of Tlatelolco (Latin American Nuclear Weapon Free Zone). In Article 5 of that Treaty, nuclear weapons are defined as:

“any device which is capable of releasing nuclear energy in an uncontrolled manner and which has a group of characteristics that are appropriate for use for warlike purposes. An instrument that may be used for the transport or propulsion of the device is not included in this definition if it is separable from the device and not an indivisible part thereof.”

In 2015, five of the nine nuclear armed states released a Glossary on Nuclear Terms. That document defined a nuclear weapon as a:

“Weapon assembly that is capable of producing an explosion and massive damage and destruction by the sudden release of energy instantaneously released from self-sustaining nuclear fission and/or fusion.”

 Negotiators will need to decide how much to limit the scope of the treaty, including by limiting the definition of what actually constitutes a nuclear weapon. It is interesting to note that several treaties related to nuclear weapons, notably the NPT and the CTBT do not explicitly define nuclear weapons within the treaty text. This too is an option for negotiators of the ban treaty.

Previous agreements

The new legally binding prohibition on nuclear weapons will reinforce and build upon existing instruments, including the nuclear Non Proliferation Treaty (NPT). The NPT, while successful in minimizing nuclear weapon proliferation has some perceived problems- not least the absence of a comprehensive prohibition, for all States, on items like the development and production – or making of- nuclear weapons. The two tiered system within the NPT leaves room for nuclear weapon modernisation programmes, new nuclear weapon capability development, and production of additional weapons. A new instrument, taking the NPT as a starting point, can address some of these issues more emphatically, strengthening the non proliferation regime and closing the perceived gaps.

Looking ahead

This blog series will examine these various items clustered under the broader headings of making, getting, using and having nuclear weapons.  There are pros and cons to each choice in language, and instead of debating those, we seek to look at what the impacts of the prohibitions could be on nuclear umbrella states under the new treaty. Next week, we will begin unpacking the ways to prohibit the making of nuclear weapons. Stay tuned.