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Should France Sign the Nuclear Weapons Ban Treaty?|
Published 18 November 2017
This question is obviously topical, since the Nobel Peace Prize has been awarded to ICAN (the International Campaign to Abolish Nuclear weapons) for its action in favour of the Treaty, and a new Korean War is developing against a background of nuclear threats.
The answer to the question seems also to be obvious, when you are advocates of nuclear weapons abolition, as ACDN has been since its foundation in 1996.
But before signing or supporting a treaty, one needs to first read the text. And then the answer becomes less obvious.
A Quasi-universal Ban
Nuclear weapons are barbarous, criminal weapons, which need to be banned from the planet. To ban them, as has been done with biological and chemical weapons, is an absolute necessity, what the philosopher Kant would call a categorical imperative. A priori, therefore, France, like the other states possessing them, ought to sign the Ban Treaty adopted by 122 states on 7 July 2017 in New York, and now open for all states to sign.
The bans on these weapons, according to the Treaty, are almost exhaustive. States that sign it commit to "never, in any circumstance, make them, test them, produce, fabricate, or acquire them in any way, or to possess or stock them", nor to ever transfer them to anyone, accept them from anyone, use or threaten to use them, authorise their presence on their territory or any place any their jurisdiction, nor to help anyone and receive help from anyone to violate these prohibitions.
We must congratulate ourselves, and join the Nobel Committee in congratulating the promoters of the Treaty: ICAN, NGOs, and diplomats of non-nuclear states who supported the initiative.
Nevertheless, the Treaty contains some serious defects, which cannot be passed over without comment. This article limits itself to the four main ones.
1. A Stupefying Gap
The first defect in the Treaty obviously passed unnoticed by its drafters and readers.
In the preamble, it enumerates all the "catastrophic effects" of nuclear weapons that
But it forgets, purely and simply, to mention the first and worst of their effects: the dozens, thousands, hundreds of thousands human deaths that a single one of these weapons can cause. It might almost have gone as far as deploring the likely fall on the Stock Exchange after a nuclear explosion. But not a word for the immediate and definitive victims, most of whom would have died in atrocious suffering. It takes account of the survivors of Hiroshima and Nagasaki, but not the dead. Little Boy and Fat Man destroyed them, but the Treaty doesn’t mention that, let’s move on. And yet it is these innumerable and undifferentiated victims, men, women, children, old people, civilians and combattants that prove that these monstrous things are weapons for massacres, of war crimes, for crimes against humanity and that make them totally, irremediably unacceptable. Yes, even when the survival of a nation-state is in jeopardy.
Perhaps only a government spokesman named Alain Peyrefitte could dare to pose the question - to General de Gaulle, just after a Council of Ministers on 4 May 1962: « Hundreds and thousands of deaths, women, children, old people carbonised in a thousandth of a second, and hundreds of others dying over the next few years with atrocious suffering, is that not what is called a crime against humanity?"
The strange silence of the Treaty probably results in part from the "humanitarian" approach - the sociological, judicial and ideological approach that inspires the Treaty. What a paradox, that it lacks... humanity. These weapons have "catastrophic consequences on the humanitarian level": their size will make it impossible, notably, to "manage the catastrophe". That is true. But it is not saying much.
A corollary is that the Treaty fails to denounce them as essentially criminal. Yet it could have taken inspiration from resolution 1653 XVI of the UN General Assembly, dated 24 November 1964, which says that "any State using nuclear and thermonuclear weapons must be considered as violating hte UN Charter, acting in contempt of the laws of Humanity and committing a crime against Humanity and civilisation. » But no, it does not repeat this stigmatisation. It limits itself to quoting (§ 13 of the Preamble) "the first resolution of the UN General Assmebly, adopted on 24 January 1946, and the subsequent resolutions calling for the elimination of nuclear weapons."
OK, what does it say, that resolution adopted in London in January 1946 by the UN’s fifty members of the time? Practically nothing. It creates a "Commission tasked with studying the problems raised by the discovery of atomic energy", with a representative from each the states on the Security Council, plus one from Canada, and gave it the objective of presenting proposals to the Security Council with a view to
In brief, the resolution expresses very well a refusal of weapons of mass destruction in general, but does not stigmatise nuclear weapons for their inhumane effects. And already it promotes the illusory distinction that would later characterise the Non-Proliferation Treaty - the distinction between bad uses of nuclear energy (military ones) and good uses, which it wants to see diffused "for peaceful ends". This diffusion is in fact its first and chief objective.
We may note that in January 1946 only the USA had nuclear arms, and that the first Soviet test happened on 29 August 1949. So by declaraing a wish to eliminate these weapons "from national arsenals" in the plural, the General Assmebly was thus presuming already that they were going to proliferate... Well, they ahd to proliferate, didn’ft they, so that we could work to eleiminate them. Curious, don’t you think?
2 A Flagrant Contradiction
I said above that the prohibitions in the Treaty were almost exhaustive. Almost, not totally. And the exception is significant. Judge for yourselves.
After saying in article 1 that a state-party commits "never in any circumstance" to infringe its prohibitions, the Treaty grants to any state, in article 17, a "right to withdraw" under three conditions: (1) it must give 12 months notice; (2) it must expound the "extraordinary events" which threaten its "supreme interests" and which in its view justify the withdrawal; and (3) if it is at the moment of withdrawal in conflict with one or more states, it must continue (until the end of the conflict) to respect the prohibitions to which it was subject before (including of course the ban on using or threatening to use nuclear weapons). (Cf. Annex A)
Thus, if we suppose that, in the "extraordinary" circumstance that motivated the withdrawal, the State in questionj had the patience, or maybe the stupidity, to respect a treaty that it was no longer committed to (precisely because it prevented it from defending its "supreme interests"), then it could, once the conflict was over, obtain nuclear weapons and use them as it saw fit.
That article 17 amounts to an invalidation of the rest of the Treaty. On the one hand the Treaty affirms and nuclear weapons are totally and definitively forbidden to all states that sign and ratify it. But on the other hand any one of those states needs only to invoke "extraordinary" circumstances and then (without even being constested since there is no such provision) it can break free from the Treaty and build a nuclear arsenal after one year, or rebuild one if it had one before - and then use that arsenal in a future conflict, since it will no longer be held to the prohibitions of the Treaty. And that will be all the more advantageous in that the other States-Parties will remain subject to its prohibitions.
The International Court of Justice (ICJ), in its advisory opinion of 8 July 1996, had judged that "the threat or use of nuclear weapons would be generally (my emphasis) contrary to the rules of international law applicable in armed conflicts, and especially to the principles and rules of humanitarian law", but that "given the current state of international law and the factual elements at its disposal, the Court cannot however conclude definitively that the threat of use of nuclear weapons would be legal or illegal in an extreme circumstance of self-defense in which the very survival of a State would be at issue."
Commenting in 1996 on the ICJ’s opinion to which he himself had contributed, the French judge M. Guillaume, one of the Court’s 14 judges, drew the conclusion that in its Advisory Opinion the Court recognised that "in these extreme circumstances (...) law provides no guide to States. But if the law is silent in this case, the States, exercising their sovereignty, remain free to act as they intend. It then follows implicitly but necessarily from paragrph 2E of the Court’s Advisory Opinion that States may have recourse to ’the threat or use of nuclear weapons in an extreme circumstance of self-defense in which the very survival of a State would be at issue’. In recognising such a right, the Court recognised at the same time the legality of deterrence policies."
If so why would a nuclear State agree to the treaty? So as to exit from it later, when it needed those weapons in "extraordinary" cricumstances which may already exist or which could arise at any moment? For example, why would Mr Kim Jung-Un renounce his nuclear arms when Mr Trump is threatening to annihilate the whole North Korean population with the same type of weapons? Is not this threat already, in itself, an "extraordinary event", all the more so when accompanied by military concentrations and manoeuvres off the North Korean coasts? Is not North Korea’s nuclear deterrence legitimised de facto by the Ban Treaty?
As you can see, the "right to withdraw" amounts to authorising any nuclear-armed State to keep them, by virtue of the right to "self-defense" which the Treaty grants. That would have been practically impossible if it had first of all described them as "weapons for crimes against humanity". This shows the full weight and the perverse effects of the silence in the preamble, discussed above.
The absurdity goes even further. Imagine the following scenario, between two nuclear-armed nations, one good, the other bad. (Any resemblance to real facts would be pure coincidence). The benevolent State is willing to disarm in good fath but is afraid it will be attacked, once its weapons are gone, by a neighbour which it has a dispute with and which is not disarming. The good State is naturally not very inclined to respect the Treaty. But the neighbour, ill-intentioned and clever too, uses the Treaty to bring the good State to join it all the same: the bad State declares its willingness to disarm and join the Treaty, and proposes for itself an elimination plan lasting over a year - that is practically inevitable - and longer than the sincere State. Then when the good one has no more weapons, the neighbour surprises everyone by announcing its withdrawal. Our good State gets worried, the tension rises, but on day 366 the two are still not at war. At that point the crafty neighbour declares war and destroys the other in all legality with the bombs it still holds... It is more probable, actually, that the sincere State would not be completely naive, and would see the blow coming, and so would also invoke the right to withdraw But the good one does so after the bad one, and no longer has any weapons - which forces it to rebuild as fast as possible, if he still has the ability. And from that moment that State is the bad one, because it violated the Treaty by trying to disarm without waiting 12 months. If the crafty neighbour wipes him out, well, really, he will have deserved it. Such are the paradoxes of a Treaty linking an incomplete ban on nuclear weapons with unilateral elimination. We will return to this point.
The improbable contradiction between article 17 and the rest of hte Treaty, and the resulting confusion, could have been avoided, however, either by the simple deletion of the article granting a right to withdraw - which would pose a few judicial problems, however - or by subordinating the exercise of this right to a different condition, one unlike the mere invocation by the State concerned of exceptional circumstances threatening its survival. Although the Treaty negotiations, on this point as on some others, took place behind closed doors without the presence of representatives of civil society, we believe that most of the delegates of states were aware of this contradiction, and were in favour of abrogating article 17 (as was ICAN). But the conference president, doubtless out of concern to reach a consensus, along with her legal staff, preferred to follow the view of the minority. I will discuss later the other option - to admit the possiblity of a withdrawal, but for a very different reason - ¬which was unfortunately not taken into consideration.
3 Open Slather for the Nuclear Lobbies
In its preamble, at § 17, the Treaty "reaffirms" that there exists an obligation to pursue in good faith and bring to conclusion negotiations leading to nuclear disarmament in all its aspects, under international control that is strict and effective". Those are the very terms of the ICJ’s conclusion in 1996, which take up those in article 6 of the NPT.
The Ban Treaty could have stopped there as a basis for wishing to ban nuclear arms. But it didn’t. In the following paragraph it pays strong homage to the NPT "reaffirming also that the integral and effective implementation of the NPT, a cornerstone (my emphasis) of the nuclear non-proliferation and disarmament regime, is indispensable to promote international peace and security".
The assertion that the NPT has been the "cornerstone of the nuclear non-proliferation and disarmament regime" is a non-truth, an historic lie, as I had occasion to say and (I think) prove in Geneva during the UN Special Working Group. Cf. A/AC.286/NGO/31 : « Echapper au double jeu du TNP »
But the Ban Treaty goes even further, at § 21 of the preamble, by " emphasising that no element of the present Treaty will be interpreted as undermining the inalienable right (my emphasis) of all states-parties to develop research, production and use of nuclear energy for peaceful ends, without discrimination ». With this affirmation of this "inalienable right" - placed clearly in the line of the NPT and before it the first UN resolution mentioned explicitly in the Treaty - we have no chance of breaking free from the tutelage of the nuclear lobbies. Ionising radiation that is "disproportionate", by affecting women and girls when atom bombs are dropped, will henceforth be banned, true, but other ionising radiation can continue legitimately to threaten them daily, from Chernobyl to Fukushima via La Hague in Normandy or Sellafield in the UK, and of course whenever there is a civil nuclear catastrophe. As I was told in New York by the delegate of the International Red Cross "atomic energy poses no problem to us". As you can see, it does not pose a problem to the Ban Treaty. Yet to us it certainly does. Cf. A/CONF.229/2017/NGO/WP.48
I have written this - and have also said it on 30 March 2017 to the diplomats gathering in New York for the first session of megotiations, thanks to the conference president who offered an unexpected day of free discussion to all representatives of states and civil society; thanks to the vice-president, the Austrian ambassador who chaired the session and included me on the list of speakers; and thanks also to the Chilean ambassador who lent me his seat after the official representatives of civil society refused me all access to the microphones. Unfortunately I was the only person to alert the negotiators to the risk which humanity faces from this "inalienable right" proclaimed and propagated by the NPT.
Is it possible for us to call on France to sign a Treaty that proclaims and grants to the nuclear industry an "inalienable right" to pollute the planet for eternity, on the pretext that this radioactive pollution is occuring "peacefully"? For me, the answer is no.
4. Abolition Postponed Indefinitely
Although the Treaty states that it is "necessary to completely eliminate this kind of weapons, the only way of guaranteeing that nuclear weapons will never be used" (Preamble § 2) and that it aims at the "complete elimination of nuclear weapons (the title of article 4 repeated in article 8), it makes no provision for leading the nuclear-armed States to negotiate the elimination of their weapons through a mutual and general agreement. Yet that was its initial objective: to establish a"legally binding instrument" to "ensure the progress of negotiations for multilateral nuclear disarmament".
The Treaty makes provision only for these States to use two methods of individual joining: either a nuclear State first eliminates its arms, has this verified, joins the Treaty and negotiates with the IAEA a guarantee agreement; or else it joins the Treaty and presents, within 60 days of joining, " a legally binding plan with precise dates for the verified and irreversible abandonment of its nuclear arms programme, including the elimination or irreversible reconversion of all installations linked to nuclear arms." But in both cases those are unilateral steps totally disconnected from the fact that the other nuclear States are (or are not) keeping their nuclear arsenals and committing to a process of elimination. The participation of each nuclear State thus depends solely on its goodwill, its good sense if it has any, and its generosity. Article 12 entitled "Universality" fits into less than three lines and for the moment it concerns only non-nuclear States: "Each State-party encourages the non-party states to sign the present Treaty, ratify it, accept it, approve it or join it, with the aim of encouraging all States to participate in the present Treaty." Over to your good hearts, ladies and gentlemen!"
The problem is that the nuclear States don’t have good hearts. Not one of them saw fit to take part in negotiating this Treaty. At first, however, three of them, important states (China, India and Pakistan) had left open the possiblity of participating, by abstaining on 27 October 2016 on resolution L41 which set up the conference for 2017 tasked with negotiating a "legally biding instrument to bad nuclear arms and lead to their complete elimination". A fourth State had even voted in favour: North Korea! But that was counting without the three fiercest opponents of the Treaty, France, the US and the UK, which succeeded in dragging the others into their opposition.
On 7 July 2017, at the very moment when the Treaty was adopted, those three declared: "We have no intention of signing, ratifying or ever being parties to it. Consequently there will be no change in our countries’ obligations in the matter of nuclear arms. For example, we will accept no allegation based on this treaty and no modification to customary international law that it might claim to develop. It is important to note that the other nuclear-armed states and almost all those relying on nuclear deterrence did not take part in the negotiations either. This initiative clearly misundertands the realities of the international security context. Joining the Treaty is incompatible with the policy of nuclear deterrence which has been essential for preserving peace in Europe and North Asia for over 70 years. A purported ban on nuclear weapons that takes no account of the security problems that continue to make nuclear deterrence necessary cannot lead to the elimination of a single nuclear weapons and will not improve the security of any country, or international peace and security."
We may call this a dialogue of the deaf, and yet there was an alternative. It was to take account of the major preoccupation of the champions of deterrence, even without sharing it, namely the preoccupation to not disarm unless the others disarm too.
I followed personally the long diplomatic process leading to the Treaty, and supported it with ACDN - from the Vienna conference of December 2014 on "the humanitarian impact of nuclear weapons" until the New York negotiations in 2017, by way of Geneva and the Working Group in 2016. A mere activist, I intervened several times, on paper or orally, trying to avert certain traps. On 22 June 2017, at a time when the question of right to withdraw and the universality of the Treaty were publicly on the carpet, I handed direct to the conference president, Elayne Whyte-Gomez, the Ambassador of Costa-Rica, and to several particularly active diplomats (of whom at least one consulted his government about this) a proposal from ACDN concerning the question: « How can we incite the nuclear States to join the Ban treaty? » Cf. Annex C.
The conclusion was: "The Ban Treaty, if it is to be more than a dead letter, must therefore offer to the nuclear States the perspective of multilateral disarmament, at the moment when they join. This possibility, if it is accepted, could be included in the Treaty, for example in point 6 added to the South African proposal concerning the Article entitled « Towards the elimination of nuclear weapons » :
That suggestion, obviously amendable, was not retained by the conference president or by the government that was shown it by its ambassador. A pity. It would have opened the path to multilateral disarmament on both the regional and the global levels. It would have satisfied the partisans of a right to withdraw without making that right a" scared right to self-defence", and it would have pushed the exercice of this out to ten years or more: time enough for the nuclear States to undertake "in good faith" and bring to conclusion negotiations on the elimination of nuclear weapons, time enough for them to learn to do without them, and to know one another. It would have shaken the clientelism of the "nuclear umbrella" States. It would have tied the ban on nuclear arms to their elimination, in line with the roadmap which the UN General Assembly had set on 7 December 2015 to the Open-Ended Working Group in Geneva "to advance negotiations on multilateral nuclear disarmament", an objective which the Treaty lost sight of. In brief, it would have opened the path to abolition, without which the Ban Treaty will never be more than a sword-stroke in the water, a flimsy piece of paper.
What should we do with the Treaty ?
Whatever its qualities and defects, the Nuclear Ban Treaty will certainly enter into force soon: exactly 90 days after the 50th instrument of ratification reaches the UN Secretary-General, its depositary. However it will have force only on States which don’t have nuclear weapons and have already renounced them through the NPT; it will have no force on any of those that possess these weapons, or host them, or think they can shelter under the "umbrella" of a country that has them.
The governments of the nuclear States, still believers in the deterrence discourse, will not sign (except perhaps Jeremy Corbyn who announced that he would, if he came to power in the UK...). They refuse any unilateral disarmament. In France a new President, barely elected, has reaffirmed the untouchability of his Jupiter-like arsenal. Only a popular demand expressed through a referendum could force him to disarm. But is that possible? Is that desirable?
We had a good hope of getting there before the Ban Treaty, through a referendum "on shared initiative" (parliamentary and citizens) which the Constitution of France’s 5th Republic has authorised since 2008. But few people know this.
An IFOP poll commissioned by ACDN taught us in October 2015 that 74% of French citizens over the age of 17 would answer YES to the question: " « Do you want France to negotiate and ratify with all the states concerned a treaty to ban and completely eliminate nuclear weapons, under mutual and international control that is strict and effective?" and that the same proportion would be ready to support (27% certianly, 47% probably) a parliamentary initiative organising a referendum on the same question. The poll showed also that the desire to abolish nuclear weapons was widely shared by those polled, irrespective of their "proximity" to any particular political current (from 63% of those who voted for Le Pen at the first round in 2012 to 89% of those who voted Mélenchon).
We then sought the initiative of the parliamentarians. In January 2016, twelve MPs invited their colleagues to co-sign a referendum bill asking the question formulated above, and a call for a referendum which gave the justification for it. By dint of conviction and patience, the signatories rose to 126 (104 MPs, 22 senators) by April 2017. But they needed to be 185, one fifth of Parliament, to lodge that bill. The crazy presidential campaign prevented us from going further and gathering the 59 signatures missing. With their validation by the Constitutional Council, the path would have been opened for a referendum on shared initiative, and the current Minister of the Interior, however Macronian he might be, would have been obliged to organise by 1 August 2018 the gathering of support from 10% of registered voters. We were such in an active national campaign to obtain a referendum that could have led France to negotiate and ratify "a treaty to ban and completley eliminate nuclear weapons."
But now that there exists a Treaty which France has not negotiated and which limits itself the banning nuclear wepaons without engaging in multilateral negotiation for their elimination, what would be the reaction of voters if asked whether they want France to ratify it in its present form, i.e. to renounce her nuclear weapson without being concerned about those of Kim Jung-Un, Donald Trump or Putin? One cannot be certain that they would have the same reaction as those polled in October 2015 by IFOP... And one would understand them! So what should we do?
Although there is no doubt that France should renounce her nuclear weapons, as should the other States that have them, the question of whether or not she should sign the Ban Treaty is not resolved. It’s for every person to judge and I can give only a personal reply.
No, France should not sign the Ban treaty in its current state. Its intention is good, but it is ill-formed: contradictory, unilateral, insufficient. It condemns only the catastrophic effects of nuclear weapons, not their criminal and inhumane nature; only their use in ordinary times, not under extraordinary circumstances; only radioactivity of military origin, not radioactivity from civil sources; only the weapons of each country separately, not the system of mutual terror in which each player holds the other "by the beard" and nobody moves, until everything explodes. It merely prohibits while uttering pious vows. It abolishes nothing.
France can do better.
Without signing, France can very well oblige herself, as the Treaty asks (when it does not authorise the opposite...) to "never, under any circumstance " use or threaten to use nuclear weapons. Because their use would be a crime against humanity, massacring human beings, despising their rights to life and health, annihilating their humanity, trampling on the values of the French Republic, flouting her Constitution, her international commitments and the UN Charter. An aberration, a horror. France must then make known that she wants to and therefore is going to withdraw her nuclear weapons from operational status, declare herself ready to eliminate them, and ask the other States to do the same.
As a token of this desire, she could as soon as the next budget vote suspend the modernisation of her weapons by cancelling all or part of the credits assigned to research & development (of the order to 4 billion euros and soon 6) so as to transfer them into uses that are socially, even militarily useful, and above all morally legitimate.
She can and should at the same time invite the other nuclear States, whether or not inside the NPT, to make gestures of the same kind but, in any case, to meet to negotiate the total elimination of their weapons under mutual and international control that is strict and effective. That is something that could be done, for example, at the next "high-level summit" planned by the UN on nuclear disarmament.
In parallel, France can also negotiate with the non-nuclear states that have signed the Ban Treaty to herself join it, subject to amendments which, according to a procedure already foreseen, would make it acceptable in all regards, signable and ratifiable, including by other nuclear States.
If the total of those objectives were made the object of a parliamentary bill duly conceived to bring about France’s effective engagement in a process for abolishing nuclear weapons, that law could then be submitted to a referendum and could force the hand, if the French people so wish, of an executive which up till now has absolutely refused to disarm. That is a purpose which "the people need to get involved in" by means of a referendum, since the fundamental question remains (here is one formulation of it): « Do you want France to negotiate and ratify with all the states concerned a treaty to ban and completely eliminate nuclear weapons, under mutual and international control that is strict and effective?"
A campaign of this kind, profiting from the publicity for nuclear disarmament created by the Nobel Peace Prize, would initiate a process from which we could see a world freed from these weapons - and also, why not, from nuclear reactors which are sleeping "dirty bombs". Since nothing forbids the abolitionist organisations of the other nuclear states (those groups linked by ICAN, for example, or by the Abolition 2000 network, or by the FSM...) from doing likewise, we could hope that the Ban Treaty will be transformed into a genuine abolition treaty, containing, alongside the prohibition panel a second panel, negotiated by the nuclear-armed states, focused on complete elimination.
If this evolution does not occur, then the Nobel Peace Prize awarded to the International Campaign to Abolish Nuclear Arms (ICAN) is likely to have the same fate as the prize awarded to Barack Obama in 2009 on the same subject - that of having no consequence. And worse things would loom on the horizon.
Saintes, 16 November 2017
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