The United Nations General Assembly began negotiations March 27-31 on a treaty to prohibit nuclear weapons. A second session is scheduled for June 15‑July 7, 2017. Following that, the General Assembly will review progress and decide on a path forward.
Nearly a half-century ago, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), today the cornerstone of the global non-proliferation regime, was opened for signature. It entered into force in 1970 and the central covenant was this: states without nuclear weapons will not seek to acquire them and states with nuclear weapons will pursue disarmament.
More specifically, under Article VI of the NPT, each party undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament. Later, in a 1996 Advisory Opinion on the legality of nuclear weapons, the International Court of Justice interpreted Article VI as not only an obligation to pursue negotiations, but an obligation to achieve a precise result - nuclear disarmament in all its aspects. The commitment in the NPT is to achieve elimination of nuclear weapons, which effectively means that all parties will eventually become non-nuclear-weapon states. Thus all NPT parties have accepted the commitment to work for a nuclear weapon ban, the only issue is how to achieve this – or how to get from here to there.
A discussion to this end was underway at the United Nations last week – but key players were absent. The five nuclear-weapon states recognised by the NPT, some 30 non-nuclear-weapon states supporting them, and the four non-NPT nuclear-armed states are boycotting the negotiations. In the case of the nuclear-weapon states and their supporters who are party to the NPT, the question arises: Is their boycott of these negotiations a violation of their NPT commitments?
Since the concept of a nuclear weapon ban is implicit in the NPT, I believe it is a failure of the good faith called for in Article VI to dismiss negotiations towards a ban as “unrealistic” before they even started. As I argued in a recent paper, the purpose of negotiations is to try to arrive at an outcome acceptable to the parties. If the nuclear-weapon states and their supporters don’t like a particular ban model, for example the Chemical Weapons Convention, they should put forward alternative proposals. Good faith requires that an effort is made to find points of agreement. If the outcome is a text the nuclear-weapon states consider unacceptable they can decline to sign it. But to reject the very idea of a ban treaty at the outset, and to refuse to participate in negotiations, predetermines that the outcome will not represent their views and can be dismissed as “unrealistic.” This is not acting in good faith.
. 1996 ICJ Advisory Opinion, para. 99.