The Treaty on the Prohibition of Nuclear Weapons: A Well-Intentioned Mistake

Dr. Christopher Ashley Ford
Assistant Secretary, Bureau of International Security and Nonproliferation
Advancing Disarmament in an Increasingly Dangerous World
University of Iceland, Reykjavik, Iceland
October 30, 2018

Good afternoon, everyone, and thanks for the opportunity to speak to you today.

I last spoke publicly about the Treaty on the Prohibition of Nuclear Weapons (TPNW) — that is, the so-called “Ban Treaty” — more than a year ago, to an August 2017 event at the Carnegie Endowment for International Peace in Washington, D.C. At the time, I was leading the Weapons of Mass Destruction Directorate at the U.S. National Security Council, and the “Ban” text had recently been finalized. Now that I am at the State Department, running the Bureau of International Security and Nonproliferation, it’s time I addressed it again.

In my 2017 assessment of the recently-drafted TPNW, I certainly didn’t speak well of it, pointing out that whatever the good intentions of most of its advocates, it is certainly not an “effective measure relating to disarmament“ within the meaning of Article VI of the Nuclear Nonproliferation Treaty (NPT). Indeed, I argued, the TPNW was very likely to be notably counterproductive. Unfortunately, the passage of time since my initial remarks has only reinforced this conclusion.

I. Harmful to International Peace and Security

In my 2017 remarks, I pointed out a number of fundamental flaws, or indeed dangers, with the TPNW — problems that were both legal and practical. I don’t want to dwell on all of those details today, though none of these problems have gone away. If you’re interested in my critique back then, I would encourage you to look up my remarks online. [1]

Just to summarize, I pointed out that the proposed Treaty would neither make nuclear weapons illegal nor lead to the elimination of even a single nuclear weapon. Contrary to what its supporters might wish, it makes no impact that would support any new norm of customary international law that would in any way be binding on any state having nuclear weapons today. In particular, all NPT nuclear-weapon States consistently and openly oppose the “Ban,” along with their military allies around the world. The text of the treaty itself is inconsistent with creation of any norm of non-possession of nuclear weapons, inasmuch as it does not actually prohibit States from joining while still having nuclear weapons, and only envisions them relinquishing such devices at an unspecified future date and under unspecified future circumstances. Far from contributing to some kind of non-possession norm, the Treaty seems itself to prove there’s no such thing.

Nor could the TPNW ensure verification of nuclear weapons elimination even if it occurred, for the text carefully declines to say anything intelligible about verifying compliance with the very prohibition it purports to bring about. Specifically, it envisions three separate scenarios – and then it gets each one of them wrong. For states that do not possess nuclear weapons, for instance, it relies on outdated system for International Atomic Energy Agency (IAEA) inspections that was designed for different purposes, and which has been known for a quarter century to be inadequate to the challenge of rooting out clandestine nuclear activity. This standard is already demonstrably inadequate in the NPT context, and it would be no better in connection with a “Ban.”

For states that possess nuclear weapons, the TPNW drops the ball even more emphatically. The Treaty offers a “disarm then join” scenario or a “join then disarm” scenario, but without spelling out any of the details such states would need to know in before accession – either in order to have confidence in effective verification or in order to protect against the disclosure of proliferation-sensitive information in the course of disarming.

  • For those that disarm before joining, verification of this disarmament is to be done pursuant to an agreement negotiated only after accession. Such countries, therefore, are asked to come aboard without knowing the verification regime to which they would be subject under the Treaty.
  • Those that opt to disarm after joining would be in an even more problematic situation, inasmuch as it is not just verification but the very process of disarmament itself that is to be worked out only after a possessor state joins the treaty. One would be asked to accede, in other words, without any assurance of protecting against the compromise of weapons design information, the disclosure of which could fuel proliferation to state or non-state actors.

No possessor state would willingly agree to disarm under those conditions, nor could anyone have any real confidence ahead of time that disarmament on such terms would actually work.

Almost amusingly, the TPNW also trips over its own feet by barring a nuclear weapons possessor that joins the treaty from assisting with the safe and effective removal and dismantlement of another country’s nuclear weapons. Article I of the TPNW would thus, in effect, prohibit cooperative efforts to achieve the fundamental purpose of the “Ban” by the only people who might be able to provide such help without this aid becoming itself a proliferation risk. Did the TPNW’s proponents really intend to create an instrument that might prohibit negotiated, cooperative denuclearization efforts such as those the United States is pursuing with the North Korea? One gets the impression that this is just another area in which things just weren’t thought through.

In short, the idea that the Ban Treaty provides any kind of viable framework for bringing about or verifying the dismantlement of a state’s nuclear weapons program is wishful, and indeed simply magical, thinking.

The moralistic rhetoric of the Ban crusade, moreover, is about as far removed as one could imagine being from an international agenda likely — in the words of the NPT Preamble — to ease tension and strengthen trust between states in order to facilitate nuclear disarmament. The TPNW’s divisiveness and confrontationalism is likely to make real disarmament progress harder, not easier, by poisoning and undermining the cooperative dialogue the world needs if we are all able to ameliorate the global and regional conditions that stand in the way of progress toward worldwide nuclear weapons elimination.

As I pointed out last year, what the “Ban” Treaty might do, however, is make the world a more dangerous and unstable place by delegitimizing the “extended deterrence” alliance relationships that underpin regional security in Europe and in the Indo-Pacific. This would not only make further disarmament progress much less likely, of course, but in fact undermine stability and increase the risk of escalating conflict involving existing weapons possessors. By damaging deterrent relationships that have for decades reduced the incentives some states have felt to pursue their own indigenous nuclear weapons programs, moreover, the TPNW could result in an increase in the number of states possessing or seeking to acquire nuclear weapons.

Nor would the international community necessarily be able to rely upon the well-established, tried and true institutions of the NPT and the broader global nonproliferation regime to control the pernicious nuclear dynamics that could be set in motion by the TPNW, for the “Ban” works at cross-purposes to these nonproliferation institutions. As I noted earlier, the TPNW deliberately ignores – and backs away from – decades of progress in making the Additional Protocol into the global safeguards standard by reifying the outdated verification system of the INFCIRC/153 IAEA comprehensive safeguards agreement. TPNW proponents have claimed that the “Ban” does not interfere with the NPT, but the TPNW explicitly provides that between parties to the treaty it takes precedence over pre-existing international agreements to the extent they contain inconsistent obligations. And, despite solemn promises to the contrary from “Ban” supporters, TPNW debates are already beginning to intrude upon and poison discourse within multilateral fora such as the NPT review process and the IAEA Board of Governors and General Conference.

As a result, despite the good intentions of most of its supporters, the “Ban” effort is obviously a misguided and counterproductive one. It is a triumph of moralistic virtue-signaling over good sense and the pragmatic hard work needed to advance its stated goals. Instead, it is likely to make the world more dangerous, more unstable, and more persistently and pervasively nuclear armed than before. Rather than belabor these points about the TPNW’s potential impact in undermining international peace and security and impeding disarmament progress, however, I would like to focus attention today on the ways in which the “Ban” is likely to threaten the interests of any state that accedes to it.

II. TPNW Parties Endanger Their Own Security

Supporters of the “Ban” effort seem to be struggling a bit to persuade states that it would really be in their interest to sign up, and while they may still eventually get enough accessions to meet the requirements TPNW’s entry-into-force provisions, a number of countries seem to be gradually waking up to the potential real-world costs and risks of joining. This is not surprising, however, for these side-effects could be very real: make no mistake, states that accede to the TPNW could inadvertently do themselves harm.

In saying this I do not simply refer to the bizarre withdrawal provision of the TPNW, which would penalize – perhaps dramatically, or even existentially – any state that joins the treaty, insofar as it explicitly prevents the effective withdrawal of such a state so long as it is a party to an armed conflict. This rule not only purports on its face to impede withdrawal precisely when such withdrawal might be most desperately necessary, but it could also serve to encourage foreign aggressors to initiate armed conflicts precisely in an attempt to trigger provisions prohibiting their victims’ withdrawal. That is, to say the least, an extremely perverse incentive.

But when I refer to the harm states could do to themselves by joining the TPNW, I mostly refer to more immediately practical dangers. One of these dangers to TPNW States Party becomes apparent, ironically, in the very activism of “Ban” supporters in the civil society arena, who make no secret of their intention to develop and implement boycott, divestiture, and sanctions — or BDS — pressures against anyone associated with nuclear deterrence. Any country that joins the TPNW would be required to enshrine the purported illegality of nuclear weapons in its own national law by taking “legal, administrative, and other measures, including the imposition of penal sanctions, to prevent and suppress any activity” prohibited under the Treaty. Such countries therefore can presumably expect to face – or even to facilitate – a blizzard of political and legal assaults in an effort to enjoin any defense- or security-related governmental, business, or commercial engagement with any nuclear weapon possessor state, or any other country associated with such a state through an alliance relationship.

Any official from a potential TPNW State who doubts the degree to which “Ban” activists plan to use BDS pressures and civil litigation to make life miserable for anyone who engages with the global network of nuclear-related security relationships should just ask those activists. It’s been quite enlightening for me, for instance, to hear directly from civil society disarmament activists themselves about how they expect to use BDS tools to punish anyone associated in any fashion with nuclear deterrence or any of its practitioners. In effect, it seems to be the objective of “Ban” crusaders to force countries and private sector entities to make a stark choice: either (a) wall themselves off completely from defense or security-related engagement — and even many commercial dealings — with any nuclear weapons possessor or “umbrella” alliance state, or (b) face a future of endless political and litigious civil society harassment.

The activists are betting that this pressure campaign will drive countries away from nuclear weapons. In a dangerous and complex world in which revisionist powers on the Eurasian landmass have returned to the use of military force for territorial self-aggrandizement, however — and a world, also, in which norms against some forms of weapons of mass destruction use are under assault, multiple countries possess clandestine chemical weapons programs, and global nonproliferation institutions are under stress — I wonder whether the effect will instead be to make real-world national decision-makers more wary of entanglement with the TPNW. Accordingly, I would invite officials from any state considering TPNW signature or ratification to think these things through rather carefully.

I would imagine, moreover, that the BDS dynamic could conceivably work both ways. That is, if the TPNW turns out to have the pernicious effects that I believe it might, countries that depend upon nuclear alliance relationships to preserve their national security against foreign aggression might come to consider it not just a misguided effort but perhaps also an unfriendly act for another country to associate itself with — and lend its support to — a legal instrument that creates such problems for international peace and security and for their own national security.

Making matters worse, one should also remember that the methods of civil society activism by which TPNW activists are trying to build support for the “Ban” are methods that, almost by definition, only have any hope of changing official policies toward nuclear weapons in free, democratic states. Nuclear weapons possessors that lack a free press and use draconian tools of political oppression to suppress any disfavored political activism in civil society are, for all practical purposes, immune to such pressures.

The asymmetric impact of “Ban” activism upon free, democratic states suggests the disturbing conclusion that to the extent that the TPNW effort were to actually succeed in goading any countries to abandon reliance upon nuclear weaponry, it risks creating a dynamic of de facto unilateral nuclear disarmament by the world’s democracies vis-a-vis nuclear-armed authoritarian states such as Russia and China. I certainly hope that no one associated with the “Ban” movement actually intends their crusade to function as an enabler for authoritarian revisionism in Europe or Asia, but it’s possible their work could have that result nonetheless. This is another reason that states might want to think twice before acceding to the TPNW.

III. Conclusion: There is a Better Way

For all of these reasons, therefore, the TPNW is clearly a colossal mistake — one that illustrates, once again, how good intentions and enthusiasm, even in the best of causes, can sometimes produce very perverse and problematic outcomes. If we really want to make the world a genuinely safer and saner place, and bring about the verified and sustainable elimination of nuclear weaponry, we all need to do rather better than that.

And, fortunately, there is a better way. Clearly, too many people have placed too much trust in magical thinking about how the nuclear weapons challenges of our age can be made to go away by a piece of paper. Inspired by the commonsense insight that real-world choices about nuclear disarmament — and the complex array of security and conflict management issues associated with such questions — will depend hugely upon the nature of and trends in the actual geopolitical conditions that countries face in the world, however, other people are thankfully working to develop concrete ways to improve those conditions in ways that will facilitate further disarmament progress.

  • Technical and policy experts have been hard at work, for instance, in the International Partnership for Nuclear Disarmament Verification (IPNDV) and the Nuclear Verification “Quad” process, as well as the UN Group of Governmental Experts on Nuclear Disarmament Verification, to explore how to answer the practical and technical challenges associated with being able to undertake and verify dismantlement of nuclear weaponry in nonproliferation-responsible ways.
  • In addition, responsible countries, well aware that existing nuclear weapons possessors are hardly likely to give up their arsenals without being assured that other countries will not be able to develop nuclear weapons, have been working to shore up the nonproliferation regime against the challenges it faces. They support effective nuclear safeguards — including universalization of the Additional Protocol and its establishment as a condition for nuclear supply — as well as sternly effective compliance enforcement when countries break the rules. They also support sound nuclear safety and security best practices, to protect against accidents and malicious acts and keep state and non-state actors alike from acquiring nuclear weapons capabilities. And they work to ensure that the IAEA gets and uses the support and resources it needs in order to play its critical role in nuclear safeguards, safety, and security around the world.
  • A broad coalition of diplomats from around the globe are also working to overcome Chinese and Pakistani stonewalling in the Conference on Disarmament, in order to allow that body finally to begin negotiating a Fissile Material Cutoff Treaty (FMCT), while others are promoting the universal adoption of moratoria on nuclear weapons testing and working to ensure that the International Data Center (IDC) and the International Monitoring System (IMS) in Vienna are properly resourced to help guard against clandestine nuclear testing. A similarly broad coalition is working tirelessly to protect and reinforce the Chemical Weapons Convention (CWC) and the international norm against the use of chemical weapons from countries determined to shield the Syrian regime of Bashar al-Assad and others from accountability for atrocities committed with chemical weapons.
  • In the United States, moreover, we are continuing our dismantlement of retired nuclear weapons, proud of the extraordinary and unprecedented nuclear disarmament success we have had over the last three decades in cutting the size of our arsenal by some 88 percent from its Cold War peak. The United States and Russia have both met the New START Treaty’s central limits, capping strategic arsenals at the lowest levels since early in the Cold War, and we continue to implement the Treaty. We also continue to encourage stability-focused engagement by and between other nuclear weapons possessors around the world in order to minimize the dangers of such possession and ensure the safe management of nuclear deterrence during whatever period still remains before to the long hoped-for final elimination of such weapons.
  • Still other experts from around the world are currently developing plans, under the new “Creating the Conditions for Nuclear Disarmament” (CCND) initiative, for a broad, multilateral dialogue — one involving not just diplomats and government officials but a range of more nontraditional stakeholders, on both a global and a regional basis — to identify ways in which states can do more, as the NPT Preamble exhorts all of us, to ease tension and strengthen trust between states in order to facilitate nuclear disarmament. We hope and expect to be able to reveal more of these plans in the near future.

All of these efforts are, in important ways, disarmament efforts, for they contribute to changing actual security conditions in the real world in ways that are likely to facilitate future progress on disarmament. As “effective measures” for facilitating nuclear disarmament, all of these efforts contribute to the fulfilment of the disarmament objectives described in the NPT and the obligations set forth in its Article VI. All of them, together, are in effect thus part of a broad and growing collective endeavor that offers a far more serious, thoughtful, and indeed viable way forward than does the confused and counterproductive TPNW.

These efforts have nothing to do with creating artificial preconditions to impede disarmament movement, as some have charged. Rather, they seek to bring about conditions in which disarmament movement can accelerate. This is about working with partners around the world in an effort to create conditions ever more conducive to disarmament progress. And for anyone who is really serious about pursuing effective measures to facilitate such progress, this is where it’s really at.

Accordingly, I hope countries around the world can put aside their well-intentioned but misguided enthusiasms for the ineffective and potentially gravely counterproductive “Ban” effort and join with the rest of us to advance this pragmatic, conditions-focused program. We owe it to our children and our grandchildren to take these issues seriously, and to approach them soberly. There is really important work we can do together, and I urge all of you to support us in this great endeavor.

Thank you.