Negotiations for a Nuclear Weapons Convention: Distant Dream or Present Possibility?
Wright, Tim, Melbourne Journal of International Law
At the 2005 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, states parties failed to adopt a final declaration. Unlike at previous meetings, there was disagreement 'across all frontlines'. (1) Today, multilateral negotiations on nuclear disarmament remain at a standstill. The apparent failure of the current step-by-step approach has prompted some states to call for a comprehensive approach involving the negotiation of a legally binding nuclear weapons convention ('NWC'). This article examines whether states are required, under the NPT and customary international law, to negotiate such a treaty and, if so, whether that obligation is time-bound It then identifies potential obstacles to the commencement of negotiations and steps which, if taken, might make negotiations more likely. It concludes that, if much greater pressure is placed on nuclear-armed states by the public and by other states, negotiations for an NWC could begin soon after the 2010 NPT Review Conference.
CONTENTS I Introduction A Growing International Support for an NWC B The Potential Role of Australia in Advancing an NWC II An NWC and International Law A Whether There Is an Obligation to Disarm B Whether the Obligation to Disarm Is Time-Bound III Obstacles to the Negotiation of an NWC A A Crisis of Confidence among NPT Parties B The Failure of the CTBT to Enter into Force C The Prioritisation of Other New Multilateral Treaties D Slow Progress on Disarmament by the US and Russia E The Failure to Eliminate Other Weapons of Mass Destruction F Abiding Concerns about Nuclear Proliferation G A Lack of Support from the Nuclear-Weapon States IV The Path Towards the Negotiation of an NWC V Conclusion
In 1996, the International Court of Justice held, unanimously, that '[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects'. (2) This obligation, like any legal obligation, must be performed within a reasonable time and cannot be postponed indefinitely) But today--four decades after states concluded the Treaty on the Non-Proliferation of Nuclear Weapons, (4) which includes an obligation to disarm--the goal of a world without nuclear weapons remains elusive. Former United Nations Secretary-General Kofi Annan has described the current state of play as one of 'mutually assured paralysis', where nuclear-armed states argue that the global environment is not conducive to disarmament because the risk of proliferation is too high, and states without nuclear weapons refuse to support nonproliferation measures because the nuclear-weapon states have been unwilling to sacrifice them. (5)
In fact, so dire is the current situation that in 2007 the Bulletin of the Atomic Scientists decided to move the minute hand of its Doomsday Clock two minutes closer to midnight. (6) The board of directors delivered a sobering warning to humanity: '[w]e stand at the brink of a second nuclear age. Not since the first atomic bombs were dropped on Hiroshima and Nagasaki has the world faced such perilous choices'. (7) It cited North Korea's nuclear test in October 2006, Iran's 'nuclear ambitions', and a 'renewed emphasis' in the United States 'on the military utility of nuclear weapons' as reasons for the decision. (8) These developments, among others, have placed the NPT under great strain. (9) At the last Review Conference for the treaty, held in 2005, states could not agree on any plan of action. (10) Last year, on a historic visit to Hiroshima, Australian Prime Minister Kevin Rudd described the treaty as 'fragmenting'. (11)
With these bleak realities in mind, it is perhaps unsurprising that some observers consider a nuclear-weapon-free world to be little more than a distant dream. (12) Several commentators have argued that it would be counterproductive to focus on the end goal of abolition at this stage. …