Nuclear Whither Diplomacy?

Nomsa Ndongwe is a research associate at the James Martin Center for Nonproliferation Studies (CNS), a co-founder of the West Coast Chapter of Women of Color Advancing Peace, Security and Conflict Transformation (WCAPS), and a former Zimbabwean diplomat, who worked on disarmament issues at the United Nations Office at Geneva. This article is a product of a Perry World House workshop on “The Future of Nuclear Weapons, Statecraft, and Deterrence after Ukraine”, which took place on April 4, 2023. This workshop was made possible in part by a grant from Carnegie Corporation of New York.

Introduction

As we enter the spring of 2023, humanity is desperately in need of more cooperation, collaboration, political will, and emphasis on unity to help us face the challenges of war, diseases such as COVID-19, hunger, sustainability, climate change, and emerging technologies. And yet, both as a global community and within our own national and regional boundaries, we are increasingly divided. The lofty ideals and principles ushered in with the end of World War II and the birth of the United Nations have been buffeted and battered relentlessly since the now seemingly halcyon post-Cold War era of peacebuilding and globalization that was the 1990s.

Nuclear nonproliferation, disarmament, arms control, and the ways in which they intersect with multilateral diplomacy have had a particularly difficult couple of decades. Since 1996, when the draft document that would become the Comprehensive Nuclear-Test-Ban Treaty was tabled at the UN outside the aegis of the Conference on Disarmament (CD) where it had been negotiated, that body has failed to produce any more agreements or even agree on a program of work. This is particularly concerning since it is the “single multilateral disarmament negotiating forum of the international community.”

A Recap

In 1998, Pakistan conducted a successful nuclear detonation, making it the eighth country in the world to possess nuclear weapons. In September 2001, terrorists attacked the United States. A US-led coalition invaded Afghanistan later that year, starting a twenty-year military engagement. In January 2003, North Korea announced its withdrawal from the Nonproliferation Treaty (1968), then a couple months later, a US-led coalition invaded Iraq in 2003 “to disarm Iraq of weapons of mass destruction.” While international focus shifted to the Global War on Terror, then worldwide economic disruption in the financial crisis of 2007 to 2008, North Korea conducted its first successful nuclear weapons test, making it the ninth country in the world to possess nuclear weapons.

This period was not all bad; there were some bright sparks of hope in the negotiation and drafting of treaties banning anti-personnel landmines,  banning cluster munitions,  regulating the transfer and trade of arms, and two US-Russia bilateral treaties to continue reducing arms: the Strategic Offensive Reductions Treaty (SORT) in 2002 and the New Strategic Arms Reduction Treaty (New START) in 2010.

When the Arab Spring began in 2011, the world witnessed regime change and violent conflict across the Middle East and North Africa, and the ofttimes violent regression of the fledgling democracies that resulted. The bloody civil war in Libya that continued after the United Nations Security Council (UNSC) sanctioned intervention under the now-discredited Responsibility to Protect Principle and the death of Libyan leader Muammar Gaddafi has not abated. Neither has the civil war in Syria, which was a key catalyst for the rise of the Islamic State. In 2006, the International Atomic Energy Agency (IAEA) reported that the Islamic Republic of Iran had a secret uranium-enrichment program; this launched UNSC sanctions and a negotiation process that culminated in a much-needed win for multilateral diplomacy in the form of the Joint Comprehensive Plan of Action (JCPOA, aka the Iran Deal) in 2015. Around the same time, Russia illegally annexed Crimea via a referendum in 2014, and a war broke out over the eastern Ukrainian province of Donbas. Meanwhile, in West Africa, the Ebola outbreak of 2014 to 2016 wrought havoc and prompted criticism over the effectiveness of the World Health Organization (WHO) and the multilateral system in helping the region fight the disease. Between 2017 and 2020, under the Trump administration, the US pulled out of the JCPOA, as well as the Paris Agreement, the Intermediate-Range Nuclear Forces Treaty (INF), and the Open Skies Treaty. Finally, when COVID-19 ravaged the world in 2020, the global pandemic exposed how pervasive disinformation and misinformation had become. In February 2022, Russia invaded Ukraine, and the ensuing war is still raging.

This snapshot highlights some of the issues that have made practitioners and civil society worldwide question the validity, efficacy, and utility of the international system. It is important to recognize that these questions are not new, but that the sense of urgency about addressing them is growing.

Treaty on the Nonproliferation of Nuclear Weapons and Weapons of Mass Destruction Statutes

The Nonproliferation Treaty of 1968 (NPT) is the cornerstone of the international nonproliferation regime—a phrase that any practitioner in issues that deal with curtailing and preventing the proliferation of nuclear weapons and material is very familiar with. This international, legally binding document enjoys near-universality with only India, Pakistan, Israel, South Sudan, and the Democratic People’s Republic of Korea (DPRK) not party to what is often called the “grand bargain.”

Under the NPT, the international community (other than the five permanent members of the UNSC, or the P5) agreed that the P5 would get rid of their nuclear weapons; not share their weapons with non-nuclear states while the latter agreed to not pursue nuclear weapons; submit to IAEA safeguards; and cooperate to seek access to nuclear energy and technology for peaceful uses only. Alongside the NPT, a host of international agreements exist on banning nuclear testing; placing nuclear weapons or any other weapons of mass destruction in outer space, on the seabed,  and in the Antarctic; as well protecting nuclear weapon free zones in Latin America,  Africa, and the South Pacific; reducing strategic arms and ballistic missiles;  and encouraging transparency between the US and Russian Federation.

United Nations

From an international law perspective, the UN Charter is the foundational document that helps dictate how member states behave towards each other. Article 2 (4) of the Charter states, “All Members shall refrain in their international relations from the threat or use of force against” another member state.

In the event that UN member states are in dispute, Chapter VI of the Charter urges states to first, “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” If that fails, then the Security Council can ask the disputing parties to pursue dispute resolution mechanisms; it also has the authority to independently investigate any such situation that may “lead to international friction” and refer a legal dispute to the International Court of Justice. Any UN member state can bring any dispute with another to the Security Council or the General Assembly.

Chapter VI is the most well-known as it gives the UNSC enforcement powers that range from imposing sanctions to military intervention. Article 51 also emphasizes that states have the individual and collective right to self-defense “if an armed attack occurs against a Member” and that right exists until the Security Council “has taken measures to maintain international peace and security.” The Council can also refer states to the UN’s principal judicial organ, the International Court of Justice that has the power to adjudicate.

Legality of Nuclear Weapon Use

There is a compelling argument to be made that states have adhered to the nuclear taboo because nuclear weapon use is morally abhorrent. However, before 2017, nuclear weapons were the only weapon of mass destruction that did not have an international legal proviso outright prohibiting them. The Treaty Prohibiting Nuclear Weapons, which entered into force in January 2021, is a significant milestone in the discourse and norms around nuclear weapons despite the fact that nuclear weapon possessor states have not signed up to the Treaty.

From an international law perspective, prior to 2017, other than commitments made in the NPT, the 1996 Advisory Opinion of the ICJ, where the court said “customary international law” dictated that even if the weapons themselves were not outright banned, if using them meant being unable to distinguish combatants from innocent civilians and could also make enemy combatants suffer unnecessarily, then their use could not be justified. This advisory opinion has a normative effect but also highlights a weakness, as the court did not make an actual ruling and even if it had, the ICJ has no enforcement powers on its rulings. Unsurprisingly, some states have interpreted this opinion as just that.

Where Are We Now?

The narrative that the UN is doing nothing and is completely helpless is not only misleading, but it is unhelpful. Throughout all the examples provided above, diplomats from various countries have always advocated and worked tirelessly for peace.

UN member states have been meeting regularly to discuss the war in Ukraine, holding numerous emergency sessions before and after hostilities began in February 2022, and as far back as 2014. The UNGA has passed numerous resolutions calling for the cessation of hostilities and for all parties to come to the negotiating table. Ukraine has also submitted a declaration granting the ICC jurisdiction to investigate war crimes being committed in its territory, both during the current conflict and going back to February 20, 2014. Warrants for the arrest of President Vladimir Putin and Maria Lvova-Belova, commissioner for children’s rights in the Office of the President of the Russian Federation, have also been issued by the ICC in connection with the alleged “unlawful deportation” of children as well as the “unlawful transfer” of children from occupied areas of Ukraine to the Russian Federation. The enforceability of those warrants is debatable since the Russian Federation is not under the Rome Statute; the only way to make it enforceable would be for the UN Security Council to refer it to the ICC. In late March 2023, Putin, announced that Russia plans to station tactical nuclear weapons in Belarus.

Role of the International Community Going Forward

The case for eschewing diplomacy, international condemnation of war crimes, and support of peace processes cannot be made at this point. The spirit in which the UN was created was to give all member states a voice and an opportunity to have issues mediated and arbitrated fairly. The fact of the matter is that when the guns fall silent, the work of diplomats in New York, Geneva, Kyiv, Moscow and beyond, will evolve into the Herculean task of litigating, implementing, and maintaining the momentum for lasting peace. Since 1949, this has been done at least twelve times for decolonization, and over 100 times for inter-state conflicts spanning from Cyprus to Lebanon to the Korean Peninsula to Ireland and South Africa. Mechanisms already exist to promote this approach; however, they do not seem to be affecting decision-making in Moscow, nor have they been explored to their fullest extent by other UN member states.

On the eve of the Russian invasion of Ukraine, Kenyan Ambassador Martin Kimani urged for peace and noted, “The Charter of the United Nations continues to wilt under the relentless assault of the powerful. In one moment, it is invoked with reverence by the very same countries who then turn their backs on it in pursuit of objectives diametrically opposed to international peace and security.” Knowing the gains that have been made around the world since 1945, and the troubles we all face collectively from threats like climate change and social and economic inequities, failure is not an option. This conflict, on the back of a global health pandemic and ‘infodemic’, has renewed my conviction that the often transactional nature of interactions on the world stage must be a thing of the past. It is high time that UN member states, regardless of economic or military might, cleave to the principles that they claim to uphold and help us achieve lasting peace in Ukraine and around the world.

The statements made and views expressed in this article are solely the responsibility of the author.