General Debate-Item: Prohibition of Nuclear Weapons; Final Treaty at UN Friday 7 July 2017

Dr KENNEDY GRAHAM (Green): In New York right now perhaps the most important event ever to be held is under way. Some 130 countries are negotiating a treaty for the prohibition of nuclear weapons.

The negotiations have a pedigree. It was 71 years ago, in January 1946, that the United Nations General Assembly, in its very first resolution, set up a commission to manage the elimination of atomic weapons from national armaments.The first aspiration of we the peoples of the United Nations was this: a nuclear weapon free world. 

 

Progress has been slow and painstaking. Originally five countries, now nine, still think it necessary to possess nuclear weapons for their national security, as they deem it.

A partial control was achieved half a century ago with the non-proliferation treaty (NPT), but it is a fraught deal. The nine States possess, even today, 15,000 nuclear weapons, with 1,800 on high alert. They are not negotiating to disarm, despite a legal obligation to do so under the NPT.

A seminal historic breakthrough occurred in December last year at the United Nations (UN) when the General Assembly agreed to negotiate a treaty prohibiting nuclear weapons for good. Progress has been rapid. A final text is expected this Friday. The draft is extraordinary. The parties will not manufacture, possess, use, or threaten to use nuclear weapons. After seven decades the world is beginning to rid itself of nuclear weapons.

There is one weakness. The draft allows a State to withdraw. So why is that a problem?

The central purpose of the treaty is to outlaw nuclear weapons. The World Court judges their use to be generally contrary to international law. The treaty notes this. It also says: "Nuclear weapons are abhorrent to the principles of humanity and the dictates of public conscience." The treaty talks about the irreversible elimination of nuclear weapons.

How can a State negotiate, sign, and ratify a treaty declaring nuclear weapons to be prohibited, contrary to law, abhorrent to the principles of humanity, and for their elimination to be irreversible, and then proceed to withdraw and acquire and use them? In human logic, not easily—actually not at all.

Why is there any withdrawal option? Because of a State's traditional right to exercise its national sovereignty. But customary international law provides for certain universal norms that no State can violate. Neither the UN Charter nor the human rights covenants have withdraw clauses. It is strange that this treaty would.

A related consideration is that the Court, back in 1996, could not conclude whether nuclear weapons would be lawful or unlawful in extreme circumstances of self-defence in which the very survival of a State would be at stake. In making this judgment, the Court noted that there is neither  in customary nor conventional international law, any comprehensive and universal prohibition of the use of nuclear weapons, as such.

That is what this treaty is designed to achieve: a final prohibition by a majority, then universally. The seminal contribution of this treaty is a total and irreversible prohibition. Once a State enters that tunnel there can be no backing out, only going forward towards the light.

So what to do? It is late in the piece and many States remain fixated on their national sovereignty in the age of the global commons, but there is some middle ground. If there is to be a withdrawal option, there should be a high threshold. If a State declares it necessary for its very survival to withdraw and acquire a prohibited weapon, it would be understood that this would trigger an extraordinary meeting of the parties, to consider the merits of any stated reasons and establish a reconciliation body to avert withdrawal.

It is not perfect. The treaty would have been better and more logical without withdrawal, but this might be a reasonable compromise, and New Zealand could lead on that after signature and ratification.