Pacta Sunt Servanda: Promises to Keep
Jonathan Granoff, President, Global Security Institute
UN Day Conference – Nuclear Disarmament: A Compass Point for Progress and Accountability
On United Nations Day three years ago, Secretary-General Ban Ki-moon set forth a compass point for international cooperation to eliminate nuclear weapons and to make the world safer on the path to this achievement. In addition to calling for work on a nuclear weapons convention or a framework of instruments to achieve disarmament, he called for entry-into-force of the Comprehensive Nuclear Test Ban Treaty, negotiations of a fissile material treaty, entry-into-force of the Protocols to regional nuclear weapons free zones, and efforts to establish a zone free of weapons of mass destruction in the Middle East, as well as the development of new norms for space weapons, missiles and conventional arms.
The Secretary-General’s Five Point Proposal remains relevant today and can help inspire work in many different forums and levels of diplomacy and civil society. It upholds a clear goal and emphasizes the incremental steps needed to get there. Such bold leadership will be needed to fulfill the aspiration, expressed so eloquently by President Obama, as “the peace and security of a world without nuclear weapons,” which will constitute in the words of Secretary-General Ban Ki-moon, “a global public good of the highest order.”
Failure to achieve greater progress in fulfilling this moral and practical imperative will result in cynicism toward the most important tool the world presently has to ensure peace — solemnly negotiated and agreed upon commitments. Without such explicit commitments — conventions, treaties — we rely upon ad hoc arrangements which are only as strong as short term perceived interests. With treaties norms are set and common purposes achievable.
But, these explicit arrangements are only as strong as the integrity of the parties and their adherence to them. The term in international law to remember is pacta sunt servanda – agreements must be kept and honored in good faith. Or, in the words of President Obama: “words must mean something.”
The 2010 Nuclear Non-proliferation Treaty (NPT) Review’s Final Statement, contains a reaffirmation of an “unequivocal undertaking to accomplish”, not just to aspire, but “to accomplish the total elimination of nuclear weapons,” It calls upon states “to undertake concrete disarmament efforts…” in fact “special efforts to establish the necessary framework to achieve and maintain a world without nuclear weapons.” It highlights that this is a matter that requires our most committed actions by saying “there is an urgent need”. “Urgent”, “concrete”, “unequivocal” – These are strong words requiring the strongest of actions.
Many of us were heartened by the attention paid to the progressive five point agenda of the Secretary-General’s Five Point proposal and particularly reference to a convention or framework of instruments to achieve the elimination of nuclear weapons.
Without such clarity of purpose the dynamism required to achieve significant threat reducing steps will be difficult to obtain. Thus we are now seeing how difficult it is just to achieve the very modest incremental steps, such as a fissile materials treaty or strengthening IAEA safeguards, needed to enhance everyone’s security. The galvanizing effect of collectively seeking the common goal of a nuclear weapons free world will make all the steps needed to move there so much easier.
In the recent United States Nuclear Posture Review, there is a “commitment to a nuclear weapons-free world” and there is even a commitment “to initiate a comprehensive national research and development program to support continued progress toward a world free of nuclear weapons,” including, but not limited to, “expanded work on verification technologies.”
What have we seen since these commitments were made?
Nearly every state with nuclear weapons seems to be upgrading, expanding, or modernizing their weapons. For example in the United States, as part of the negotiations for obtaining the START treaty, a new commitment was made to allocate potentially over 200 billion dollars to modernize the arsenal – modernizing delivery systems and modernizing weapons. There may also be some commitment to initiating a comprehensive national research and development program, as called for in the Nuclear Posture Review, but if any funds have been allocated to this task, they are dwarfed by the commitment to modernize the arsenal.
The language of the final statement of the NPT Review Conference is very consistent with initiating a comprehensive research and development program at an international level. And if anything is needed now, it is a clear, unambiguous, unequivocal, irreversible, well-funded effort by like-minded states, or all states if possible, on laying out the framework necessary to obtain and maintain a nuclear weapons-free world. There is no ongoing forum in which nuclear disarmament is being discussed and advanced on a daily, regular, systematic basis. There is language, there are statements, but we don’t see the institutionalization, we don’t see the commitment being operationalized and that’s what’s really important.
Without such a clear course of action, we become subject to backsliding. The ongoing debate should be about how to get rid of nuclear weapons. Yet, continually we are forced to return to the argument whether we should get rid of nuclear weapons. That argument should have been laid to rest in 2000, when the “unequivocal undertaking” to elimination was made at that NPT Review Conference.
I assure you, we will again be faced with bureaucracies and think-tanks and politicians who will force us to revisit the argument whether we should get rid of nuclear weapons again and again unless we lay out the framework or proceed to negotiate the preparatory process for a nuclear weapons convention.
Some people say working on a framework or convention is a distraction from the NPT. I very much disagree with that analysis. The NPT contemplates subsidiary instruments to fulfill its non-proliferation and disarmament purposes. Nobody argues that a test ban treaty is a distraction from the non-proliferation purposes of the NPT or that a Fissile Material Cut-off Treaty is a distraction. The NPT contemplates subsidiary instruments. We need subsidiary instruments to achieve non-proliferation goals and likewise to achieve disarmament goals. It is to fulfill the disarmament pillar of the NPT that a framework of agreements or a convention is needed.
Some people say there are many preconditions to beginning this process. There seems to be a proliferation of preconditions. For some the precondition is the elimination of bad people. For others it’s the elimination of bad states. For others it’s a utopian world in utter harmony. But there is no language in the Final Statement of the NPT Review and there is no language in the Nuclear Posture Review that there are preconditions to beginning this process of making progress to move toward negotiating the elimination of nuclear weapons. There is no legal basis for that position.
It is a political basis and it is for countries’ leaders, and all of us, to educate the public on the consequences of not commencing to more substantially work on nuclear disarmament now.
There appear to be three paths before us:
One is ad hoc incremental steps with numerous preconditions before actually commencing the real work of negotiating disarmament.
Two is beginning the creation of a comprehensive framework that incorporates both incremental steps, but insures the clarity of purpose of disarmament, thus forming a basis to critique diversions from the disarmament process and a context to integrate many programs and approaches.
Third is a fast-track toward a convention with prompt commencement of preparatory work, leading to negotiations as early as possible.
I think the latter two are much preferred and the ad hoc incremental approach is proving to be too slow.
I believe that what can drive this process is the understanding that nuclear weapons are morally, culturally, and humanly repugnant.
Imagine if the Biological Weapons Convention said that no countries can use smallpox or polio as a weapon, but nine countries can use the plague as a weapon. We would all say this is incoherent and utterly immoral. We recognize that the plague is unacceptable.
The weapon itself is unacceptable. It is not legitimate, legal, or moral for any country, good or bad, to use or threaten to use such a weapon. Such conduct would clearly violate our most basic universal civilized standards which are embodied in international humanitarian law. That is why in the final statement of the 2010 NPT Review Process one of the most important elements is the explicit, positive, and unambiguous commitment to the application of international humanitarian law in nuclear weapons policy.
This is an area for nuclear disarmament advocacy that should be utilized very forcefully. International humanitarian law is the body of law that governs the use of force in war. It prohibits the use of weapons that are unable to discriminate between civilians and combatants. It necessitates that all weapons must be proportionate to specific military objectives. They must not cause unnecessary or aggravated suffering even to combatants. They must not affect states that are not parties to the conflict, and they must not cause severe, widespread, or long-term damage to the environment. The International Court of Justice in its landmark advisory opinion on the legality of nuclear weapons highlighted the fact that it is impossible to control nuclear weapons in space and time.
Indeed, one can with great imagination imagine certain uses that would be compliant with international humanitarian law. A depth charge in the high seas might do so. A small nuke in a desert might do so. But the vast majority of missions and deployments of nuclear weapons are not those exceptions. The vast majority of deployments and missions of nuclear weapons violate those principles of international humanitarian law. That highlights the need to operationalize creating the framework of instruments needed to eliminate nuclear weapons, begin the preparatory process for a convention and begin that process now.
The threat covers everyone on the planet and thus every state, not just nuclear weapon states, have a responsibility to start this process.
There are no good reasons to wait and there are many good reasons to seize this political moment, a moment where those states that possess nuclear weapons are not existential enemies.
The global economy has become one fabric. Today, as never before, we are communicating ideas, passions, and art without borders. We share a common climate, common oceans, and it is time that we realized we share a common future. The security our children deserve requires global security with multinational cooperation based on the rule of law. When it comes to nuclear weapons, the pursuit of national self interest must not be distorted by the provincialism of national myopia. Realism requires common efforts. It is in the interest of every nation to work to eliminate nuclear weapons. We live in one world. It is time that we started living in a civilized fashion. As the late Senator Alan Cranston used to say, “Nuclear weapons are unworthy of civilization.” We have to get rid of them.
Thank you.
Jonathan Granoff is the President of the Global Security Institute, a representative to United Nations of the World Summits of Nobel Peace Laureates, a former Adjunct Professor of International Law at Widener University School of Law, and Senior Advisor to the Committee on National Security American Bar Association International Law Section.
