Hope Becomes Law: The Treaty on the Prohibition of Nuclear Weapons in the Asia-Pacific Region

ABSTRACT

The Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force on January 2021, but has a long way to go towards institutionalisation and its intended impact on the dominant presumption of the legitimacy of nuclear weapons. Dialogue on the treaty in the Asia-Pacific region faces a suite of issues regarding movement of the treaty towards institutionalisation as a regime. The effectiveness of regional dialogues will be affected by the following:

• the ability of the proponents of the TPNW to overcome the restrictions of the partialism of existing international law on nuclear weapons;

• decisions regarding proposals of basing dialogue about the TPNW on a claimed primacy of the Non-Proliferation Treaty;

• debates about the path forward: stigmatisation vs. delegitimating nuclear weapons;

• the critical counterfactual: Can we imagine a Threshold Nuclear Disarming State?

• debates on Nuclear Supporting States and Extended Nuclear Deterrence;

• obstacles to treaty compliance posed by globally distributed systems of nuclear command, control, and communication;

• a universal human interest in having in place by the time a Threshold Nuclear Disarming State appears a comprehensive verification regime which will be “fit for purpose” in the circumstances that will prevail at that point;

• the importance of the inclusion of Pacific island states in Asia-Pacific dialogue to enhance understanding of nuclear testing impacts; and

• seeing the current global pandemic as a stress test indicating the importance of eliminating nuclear weapons before the full impact of climate disruption reshapes global patterns of conflict.

KEYWORDS:

• Treaty on the prohibition of nuclear weapons
• asia-pacific region
• extended nuclear deterrence
• nuclear command
• control
• communication
• delegitimating nuclear weapons
• global pandemic

Introduction

For the three-quarters of a century since the first use of nuclear weapons in war, the Asia-Pacific region has been a locus of nuclear weapons use, threat of use, testing of nuclear weapons and their delivery systems, distributed elements of nuclear command, control, and communications systems, alliances reliant on assurances of extended nuclear deterrence, and active deployments of large numbers of nuclear weapons both strategic and tactical in scale on land, in the air, at sea and beneath the sea¹ The number of nuclear-armed states in the Asia-Pacific region increased from one in 1945 to eight today. Israel is the only nuclear-armed state with no presence in the Asia-Pacific²

For most of this period law as serious restraint in nuclear weapons was weak, limited to certification of a small number of nuclear-armed states as “responsible nuclear sovereigns”, or simply ignored by those and other nuclear-armed states. International law on state responsibility and accountability for use of nuclear weapons, threat of their use, or aiding and assisting such actions was limited or so distant in applicability as to be ineffectual. The nuclear-armed states effectively treated might as right, with law as either irrelevant or at most providing a convenient and helpful fig leaf of legitimacy, most importantly through the selective recognition of right of nuclear possession certified by the Nuclear Non-Proliferation Treaty (NPT)³

On 22 January 2021 the Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force 90 days after the requisite fifty out of some 86 signatories completed ratification on 16 October 2020. Three and a half years after the opening of the text of the treaty for signature the end came in a rush – sixteen ratifications amid the pandemic during 2020, including Malaysia, Tuvalu, Jamaica, Nauru and Honduras between September 30^th and October 24^th4 These ratifications leading to Entry into Force were despite – or possibly, in part, because of – a last minute cease and desist demarche from the United States urging governments that had already either signed or ratified the treaty to withdraw their support.

The US letter to signatories of the TPNW, reported on 22 October, stated that the treaty “turns back the clock on verification and disarmament and is dangerous”:

‘Although we recognize your sovereign right to ratify or accede to the Treaty on the Prohibition of Nuclear Weapons (TPNW), we believe that you have made a strategic error and should withdraw your instrument of ratification or accession’ (Lederer 2020).

The failure of this US intervention is a marker of the dilapidation of the historic US capacity to lead on nuclear weapons by the creation of consensus or by implied threat.

Following the establishment of a UN-auspiced treaty regime of global intent, it would be useful to begin by framing global discussions about nuclear weapons in terms other than those derived from the NPT. Rather than speaking of the NPT’s Nuclear Weapons States and Non-Nuclear Weapons States, plus the four non-NPT nuclear-armed states, the world can more helpfully be seen as actually made up of three main groupings, roughly as follows:

• the Nuclear Possessing States (NPSs), made up of the five Nuclear Weapons States “recognised” under the NPT plus the other four nuclear-armed states, with possibly more to come;

• the currently thirty-plus Nuclear Supporting States composed mainly, though not solely, of those asserting the legitimacy of reliance on US extended nuclear deterrence; and

• the largest group, the Nuclear Ban Treaty States.

This framework also leaves open the possibility of the emergence at some point of a fourth category, a Threshold Nuclear Disarming State, the non-utopian character of which will be scrutinized below.

Excitement at the entry into force of the ban treaty should suggest the treaty epitomizes the sole critical current of contemporary change on nuclear weapons or that such currents are necessarily benevolent. In fact, the rupture of US nuclear hegemony accelerated by President Donald Trump’s reign of chaos energized two competing and opposing trends: on the one hand, the nuclear abolition movement, epitomized by the TPNW and the awarding of the Nobel Peace Prize in 2017 to the International Campaign Against Nuclear Weapons (ICAN) which originated in Australia; and on the other, the precise reverse movement, with leading policy-makers of major Nuclear Supporting States publicly re-considering the desirability of developing nuclear weapons themselves – vide Japan, South Korea, Germany and Australia – all major US allies.

Suggestions, common in the ranks of ban treaty supporters, that the treaty represents the flow towards an almost inevitable future of nuclear abolition, and that countries relying on nuclear defence should “get on the right side of history”, may be good campaigning talk, but carry a touch of hubris, and with that, the risk of being blindsided by the unhappy developments actual history too often provides to those who ignore its contingency and complexity.

To be sure, there is no guarantee that the treaty will achieve its aim of impelling a move from prohibition to elimination. In the first instance, a treaty only binds the parties that have signed and ratified it. For an international law to become binding outside of a treaty (that is as a principle of customary international law), a large majority of states (including those which are specially affected) must both believe it is a rule of customary law and adhere to it in practice⁵ The nuclear-armed and nuclear-umbrella states in the Asia-Pacific region clearly intend to ignore or quash the ban treaty.

And, of course, the entry into force of a treaty with global intent with as yet only a quarter of the world’s countries as states parties has a long way to go before it reaches any of its three primary proximate goals:

• to become binding international law on a sufficiently large number of States Parties to the point where it impinges in practice on the behaviour of countries that are not states parties;

• to induce one or more Nuclear Supporting States to accede to the treaty; or,

• more distantly, to contribute to shifting at least one of the Nuclear Possessing Countries towards the status of Nuclear Threshold Disarming State.

Before discussing the prospects and problems facing the TPNW in its path towards institutionalization and universalization it is important to note an ambiguity in the assumption that the fact of the treaty marks a distinctive break with existing international law on nuclear weapons. The key question is whether the existence of that law will materially increase the likelihood of the eventual elimination of nuclear weapons. Supporters of the TPNW take comfort from the fact that at last the use and possession of nuclear weapons has been unequivocally prohibited by an instrument of international law. To be sure, resistance is expected, and it is hoped that binding law on states parties to the treaty will come to be supplemented by constraints on non-states parties through the influence of gradually developing normative standards of behaviour.

However, this optimism must be tempered by a strong and clear awareness not just of the opposition that has already been expressed by the supporters of the use of nuclear weapons, but also of the need to transcend limitations on the effectiveness of the treaty deriving from the distinctive characteristics of the body of international law on nuclear weapons.

In a review of the extent to which existing international law up to the passage of the TPNW actually devalues nuclear weapon weapons to a measurable extent, the New Zealand legal scholar Anna Hood argues that international laws on nuclear weapons fall into one of two broad categories, neither of which have the effect of deeply devaluing nuclear weapons.

One set of relevant international laws appears to devalue nuclear weapons but

‘fail to ensure that nuclear weapons are devalued in any deep sense and in some respects actually work to reinforce the value of the weapons in particular ways’ (Hood 2020, 22). ⁶

This set of laws treats nuclear weapons either as “safe and legitimate” providing they are in the right hands, or in the case of another sub-grouping, as “safe and legitimate providing certain limits on the weapons are respected”. While recognizing some positive aspects of each, Hood maintains the Partial Test Ban Treaty, the Non-Proliferation Treaty, the Comprehensive Test Ban Treaty, key United Nations Security Council resolutions, and the International Court of Justice Advisory Opinion and rulings on nuclear testing

‘have fallen short in some significant ways of devaluing nuclear weapons and in certain respects reinforced and enhanced their value, legitimacy and prestige’ (Hood 2020, 22)⁷

This set of laws, Hood argues, has largely been the creation of Nuclear Possessing States, “reflecting their aims and values”.

A second set of international laws more deeply devalue nuclear weapons, in particular nuclear weapon free zone treaties and, now, the Treaty on the Prohibition of Nuclear Weapons:

‘The nuclear-weapon-free-zone treaties and their protocols diminish the value of nuclear weapons because the comprehensive restrictions within them not only delegitimize the weapons but also place significant restraints on the nuclear practices of nuclear-weapon States and force nuclear-weapon States to alter the role that nuclear weapons play in their security policies in those regions.’

This second set of laws Hood points out have largely been developed and generated by states that shared “a common antinuclear agenda”, neither possessing nuclear weapons nor relying on nuclear alliances for their own defence. The Nuclear Weapon Free Zones are acknowledged and complied with to varying extents by Nuclear Possessing States, reflecting the fact that they were the creation of states without nuclear weapons. Nuclear Supporting States, with the exception of Australia, have shown little interest⁸ The TPNW is an exemplar in this sense as well, the creation of non-nuclear states and opposed by both Nuclear Supporting States and Nuclear Possessing States. It risks remaining a virtuous expression of a majority of the world’s states, disregarded by a powerful minority. For the ban treaty to reach anything like its full potential either legally or normatively, its States Parties will minimally have to include important instances of both.

Hood regards this bifold division of international law on nuclear weapons as unusual “and quite different from what happens in other legal fields”, describing this situation as a case of “partialism” in international law:

‘It is partial in the sense that most legal instruments are drafted by (and/or very heavily influenced by) just part of the international community (and not necessarily parts that are connected territorially), and partial in the sense that the laws tend to reflect the interests and values of the sub-set of States drafting them’ (Hood 2020, 28)⁹

In one respect, this conclusion is not news to proponents of the TPNW: the whole point of the ban treaty movement was to establish a UN-auspiced treaty regime that indubitably prohibited nuclear weapons. That there would then be a long struggle to realise the goal of universalization was understood and acknowledged.

Hood’s analysis of the manner in which this system of partial law has been constructed by different international actors suggests that reliance on international law as the key pathway to elimination of nuclear weapons carries a risk that the TPNW will remain just another example of partialism in nuclear law, with its promise of deep devaluing of nuclear weapons rendered inert. Hood stresses the need for supporters of the TPNW to address issues of security as a principal discursive strategy to thwart the intent of its opponents to negate its potential. Going further still, in this sense, Hood’s analysis suggests that over-reliance on a flawed progressive narrative of international nuclear law risks entrapping the movement for nuclear abolition in a well-ploughed field of international law that is much less promising than expected.

The means of avoiding that trap are not different from those already outlined and to be discussed in greater detail below: transcending partialism by enlarging the number of states parties; impinging on the activities of Nuclear Supporting States and Nuclear Possessing States by both delegitimating and devaluing nuclear weapons and norm formation; searching for cracks in the “global indivisibility of extended nuclear deterrence” amongst Nuclear Supporting States; and above all, looking for the possible first Nuclear Threshold Disarming State.

Yet while these strategies and pathways may have been identified already, Hood’s analysis of the TPNW’s precursors in international nuclear law reminds us that a part of existing nuclear law itself – possibly the greater part – is inimical to the ban treaty’s purpose and character, and that the existing pattern of the other part of nuclear law is already severely marked by a pattern of restriction and exclusion.

Yet, for all these challenges, for the first time since nuclear weapons were first used in war 75 years ago, there is an unambiguous prohibition in international law on the use and possession of nuclear weapons that has come into force for more than a quarter of the world’s states – and most likely will do so for a majority of states in the world. It is now reasonable to expect that most of the remaining 36 current signatories will ratify, and that more will join them in time, bolstering the institutionalisation of the treaty regime.

If the final, still distant primary objective of the TPNW is to move from prohibition of nuclear weapons to their elimination, then institutionalisation and univeralisation of the TPNW regime are critical steps. Governmental and civil society supporters of the TPNW in the Asia-Pacific region intend to continue campaigning to realize these near-term goals. This will entail engaging in dialogue with sceptics and opponents of the treaty in the Nuclear Possessing States and the Nuclear Supporting States. Thus, much as these nuclear-dependent states may want to ignore the TPNW, treaty proponents intend to force them to respond to it in domestic settings and in regional and global fora. At a minimum, all governments supporting the right to possess or rely on the use of nuclear weapons for their defence polices will now face potentially substantial discursive challenges to previously unchallenged legitimacy on that matter. Dialogues that test and challenge – and more actively defend – the legitimacy and utility of nuclear weapons are going to be much more characteristic of regional relations than in the past.

One starting point of such dialogues will be regionally-based dialogue in the Asia-Pacific region¹⁰ This paper takes a frame of the non-nuclear states of East Asia, Southeast Asia, and the Pacific island states, including Australia and New Zealand¹¹ These regions correspond to the non-nuclear states that make up two well-established Nuclear Weapon Free Zones (the South Pacific NWFZ and the Southeast Asian NWFZ) and those that make up a proposed third (a Northeast Asian NWFZ)¹² (See Table 1.)

Table 1. Non-nuclear weapons possessing East Asian, Southeast Asian, and Pacific Islands states: Status regarding nuclear weapons

Participant	Nuclear weapons status	TPNW status
		Signature	Ratification/Accession (a)
Australia	South Pacific NWFZ/ Nuclear Supporting State
Brunei Darussalam	Southeast Asian NWFZ	26 September 2018
Cambodia	Southeast Asian NWFZ	9 January 2019
Cook Islands	South Pacific NWFZ		4 September 2018 (a)
Federated States of Micronesia	South Pacific NWFZ*
Fiji	South Pacific NWFZ	20 September 2017	7 July 2020
Indonesia	Southeast Asian NWFZ	20 September 2017
Japan	Nuclear Supporting State
Lao People’s Democratic Republic	Southeast Asian NWFZ	21 September 2017	26 September 2019
Kiribati	South Pacific NWFZ
Malaysia	Southeast Asian NWFZ	20 September 2017	30 September 2020
Marshall Islands	South Pacific NWFZ*
Mongolia	Mongolian NWF status
Myanmar	Southeast Asian NWFZ	26 September 2018
Nauru	South Pacific NWFZ	22 November 2019	23 October 2020
New Zealand ^1	South Pacific NWFZ	20 September 2017	31 July 2018
Niue	South Pacific NWFZ		6 August 2020 (a)
Papua-New Guinea	South Pacific NWFZ
Palau	South Pacific NWFZ*	20 September 2017	3 May 2018
Philippines	Southeast Asian NWFZ	20 September 2017
Republic of Korea	Nuclear Supporting State
Samoa	South Pacific NWFZ	20 September 2017	26 September 2018
Singapore	Southeast Asian NWFZ
Solomon Islands	South Pacific NWFZ
Thailand	Southeast Asian NWFZ	20 September 2017	20 September 2017
Timor-Leste		26 September 2018
Tonga	South Pacific NWFZ
Tuvalu	South Pacific NWFZ	20 September 2017	12 October 2020
Vanuatu	South Pacific NWFZ	20 September 2017	26 September 2018
Viet Nam	Southeast Asian NWFZ	22 September 2017	17 May 2018

*These countries are not members of the South Pacific NWFZ, but are eligible to become so if they choose.

Sources: United Nations, Treaties, Disarmament, Treaty on the Prohibition of Nuclear Weapons, New York, 7 July 2017, status as at 23 November 2020; South Pacific Nuclear Free Zone Treaty (SPNWFZ) Treaty of Rarotonga, Nuclear Threat Initiative; Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty), Nuclear Threat Initiative.

Both the Southeast Asian and Pacific islands regions show a sharp division in each region between a small number of Nuclear Supporting States and a large number of ban treaty supporters. Japan, South Korea and Australia, the three major US allies in the region, have opposed the treaty, sometimes vociferously¹³ None of these three principal US-allied Nuclear Supporting States attended the treaty negotiations, and all three have subsequently reaffirmed their commitments to reliance on US nuclear deterrence and opposed the TPNW.

Member states of the Association of Southeast Asian States (ASEAN) have in general shown strong support for the treaty, and several large states took a leading part in the treaty text negotiations. All thirteen ASEAN member states participated in the UN General Assembly negotiations leading to the adoption of the text of the TPNW in July 2017, with all but one voting for its adoption¹⁴ Nine ASEAN member states have signed the treaty, of which four have ratified to date, including Malaysia, Thailand and Vietnam. All Pacific island members of the South Pacific Nuclear Weapon Free Zone supported the adoption of the treaty text, and nine (including New Zealand) have signed or acceded to the treaty to date.

It may be thought that none of this matters in regional diplomacy, but that may well not be the case. On the matter of the ban treaty, the three Nuclear Supporting Countries are almost wholly isolated from their regional neighbours in Southeast Asia and the Pacific islands. This division from neighbours is especially important for Australia and Japan, both of which as US allies have for decades sought closer relationships with Southeast Asia. All three Nuclear Supporting States have spoken of the need for closer relationships with Pacific island states in the face of increasing strategic competition for regional influence from China.

Dialogue in the region faces a suite of issues and problems regarding movement of the treaty towards institutionalisation as a regime. All of these issues have regional dimensions. The effectiveness of regional dialogues about the TPNW will be affected by the following:

• the nuclear ban treaty as rebellion against global nuclear hegemony;

• decisions regarding proposals of basing dialogue about the TPNW on a claimed primacy of the Non-Proliferation Treaty;

• debates about the path forward: stigmatisation vs. devaluing and delegitimating nuclear weapons;

• understanding of the critical counterfactual implicit in the nuclear ban treaty: Can we imagine a Threshold Nuclear Disarming State?

• debates on Nuclear Supporting States and Extended Nuclear Deterrence;

• the regional obstacles to treaty compliance by regional Nuclear supporting States posed by hosting of globally distributed systems of nuclear command, control, communication and intelligence;

• a universal human interest in having in place by the time a Threshold Nuclear Disarming State appears on the horizon a comprehensive verification regime which will be “fit for purpose” in the circumstances that will prevail at that point – and beyond; and

• the importance of the inclusion of Pacific island states in regional dialogue about the TPNW.

Whatever the disdainful disregard of the ‘entirely unserious’¹⁵ ban treaty by the Nuclear Possessing States and the Nuclear Supporting States, the ban treaty will establish a United Nations-auspiced legal regime based on the presumption of the fundamental illegitimacy and prohibition of development, testing, production, stockpiling, stationing, transfer, use and threat of use of nuclear weapons, and also assistance and encouragement to such prohibited activities.

Nick Ritchie and Kjølv Egeland summarised the rationale behind concentration on the ban treaty’s capacity to reshape the frameworks of nuclear weapons discourse in terms of possessors of agency and legitimacy:

‘From a theoretical perspective, the purpose of these discursive shifts was to transform the subjectivities of core actors, which is a central feature of productive power. While the non-nuclear-armed states would be redefined from passive or “subaltern” bystanders to active stakeholders in humanitarian diplomacy, the nuclear-armed states (especially the NPT NWSs) would be recast from “responsible nuclear sovereigns” entitled to practice nuclear deterrence to irresponsible possessors of uncivilised weapons of mass destruction’ (Ritchie and Egeland 2018, 132).

This anticipated nuclear policy debate is about the establishment of norms and practices derived from the treaty, and resistance to such processes (Ritchie and Egeland 2018). As Egeland put it trenchantly and elegantly,

‘The supporters of the ban are aiming to replace the NPT’s distinction between nuclear haves and have-nots with a distinction between nuclear civilizers and barbarians’ (Egeland 2018, 18).

The US demarche to TPNW signatory states in late 2020 was extraordinary in its cavalier attitude to good faith in international law by encouraging signatory states to ignore Article 17 of the treaty permitting withdrawal only on the condition a state party

‘decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country’.

But the US letter was also revealing in its simplistic repetition of US government-issued talking points repeated over the previous four years and echoed loyally by Nuclear Supporting States such as Australia in a range of forums¹⁶ A sample of such claims, most of which have been refuted effectively, would include:

• “The TPNW undermines the Non-Proliferation Treaty.”

• “The TPNW has weaker nuclear safeguards than the Non Proliferation Treaty.”

• “The TPNW disregards the need for verification of disarmament by Nuclear Weapons States.”

• “The TPNW is incompatible with alliance by Non-Nuclear Weapons State countries with Nuclear Weapons States.”

• “The day after the TPNW comes into force, there will be just as many nuclear weapons as there are now.”

• “No state possessing nuclear weapons has signed the treaty – or is ever likely to do so.”

• “The TPNW and its supporters are creating divisions in the global arms control and disarmament community.”

• “The TPNW undermines democratic open societies which are committed to transparency about nuclear disarmament, and protects autocratic and authoritarian states that are secretive and repressive.”

• “Many states that voted to adopt the text of the TPNW in 2017 now have signers” remorse: it will never come into force.’

All of these criticisms were aired during the 2017 UN General Assembly negotiations over the text of the TPNW. Further, almost all have either been disproved by the TPNW’s short history to date (little signer’s remorse on display; Entry into Force has been achieved); shown to be willful misrepresentation (how many countries have countries has the NPT disarmed?; the ban treaty does not limit alliances with Nuclear Possessing States, just specifically nuclear alliances); or shown to be simply self-serving (all Nuclear Possessing States are secretive and repressive when it comes to their nuclear weapons).There are indeed several valid concerns, along with continued misunderstandings, about some aspects of the treaty, which are discussed below, but most of the list above are now a matter of unwarranted repetition of debunked claims.

In this time of pandemic, the number of countries that have ratified the treaty under such conditions is striking: Belize, Botswana, Fiji, Honduras, Ireland, Jamaica, Lesotho, Malaysia, Namibia, Nauru, Nigeria, Niue, Paraguay, Saint Kitts and Nevis, and Tuvalu. That these countries, some of which are relatively small and almost all of which face economic and climatic difficulties, should have taken on the burden of ratification under the added weight of the pandemic suggests a measure of determination on the part of the less powerful of the world’s governments to move the ban treaty into law. Together with the near universal signing of the treaty by the countries of the Association of Southeast Asian nations and of the Pacific Island Forum, this pattern suggests there is fertile ground for proactive dialogue in the Asia-Pacific, in the first instance between government and civil society organisations from the Nuclear Ban Treaty States and those from Nuclear Supporting States.

Two Key Choices on the Pathway to TPNW Universalization

With the entry of the TPNW into force for its states parties both proponents and opponents of the treaty enter into a new strategic setting. There are issues of concern to both sides about how to proceed, and some of them are potentially difficult. Two of those issues concern the starting points for ongoing dialogue each side commonly proposes, both of which require serious thought before the longterm framework for regional dialogue is firmly set.

One issue concerns the relationship between the Non-Proliferation Treaty and the Treaty on the Prohibition of Nuclear Weapons: in particular, whether the basis of negotiations should be the primacy of the Nuclear Non-Proliferation Treaty as the foundation of global regulation of nuclear weapons. Seeing the NPT as “the cornerstone of the global non-proliferation regime” and therefore as the starting point for any dialogue on nuclear disarmament leads some critics of the TPNW into difficulty. I will argue that an assessment of the NPT regime will conclude that whatever its utility for restricting the growth in the number of Nuclear Possessing States, for purposes of nuclear disarmament proper the Non-Proliferation Treaty is effectively a dead letter¹⁷ A simple ecumenical approach will not be productive for dialogue.

The second issue involves a concern with the common framing by proponents of the TPNW of the treaty’s primary process towards universalisation as one of stigmatising the states possessing nuclear weapons and their supporting states. Clearly, nuclear weapons will continue to give rise to feelings of disgust and revulsion amongst vast numbers of people, including, it must be stressed, amongst many consequently reluctant supporters of nuclear deterrence. Advocates of the TPNW will face a hard choice as they engage with those committed to retaining nuclear weapons. They will need to choose between continuing to focus primarily on stigmatizing the pathological psychosocial aspects of nuclear weapons theory and practice, versus concentrating on universalising of the nuclear ban treaty through less emotive but no less explicit strategies of devaluing and delegitimating nuclear weapons.

The NPT Is Not a Starting Point for Dialogue

Many critics of the TPNW argue that discussion and dialogue about the ban treaty should be framed on the basis of the primacy of the nuclear Non-Proliferation Treaty as the foundation of global regulation of nuclear weapons¹⁸ But the NPT, as “the foundation of nuclear restraint” in existing international law aimed at regulating nuclear weapons, has in fact been the most enduring discursive legitimation for the ongoing possession and use of nuclear weapons, and even then is silent on the four non-NPT Nuclear Possessing States, and likely to remain so (Hood 2020; Ritchie 2019; Hayes 2018).

Insistence on the primacy of the NPT as a starting point is often accompanied by support for a range of arms control, nuclear security, and non-proliferation measures. Like the NPT itself, these other measures are based on an explicit or implicit of presumption of legitimacy of nuclear weapons. In fact, it will be important to distinguish between the insistence on the primacy of the NPT and support for other arms control and nuclear security measures.

There are three important flaws to the argument for the primacy of the NPT.

There can be little objection to dialogues with supporters of the NPT as such, but given the almost moribund state of NPT discussions in recent years, it would first be appropriate to cast a sceptical eye over the prospects of anything productive emerging from the postponed 2020 NPT Review Conference, due to convene in 2021. There was little evidence of such positive prospects before the postponement of the 2020 conference. The past two decades of NPT RevCons have featured many promises, but shown little or no actual progress or achievement – and certainly none on nuclear disarmament as required of the Nuclear Weapons States and their supporters by the NPT’s wholly ignored Article 6.

The NPT is not dead, but there is little likelihood of substantial reform, even simply in the form of making good on the promises of RevCons past. No governments in the Asia-Pacific, (and certainly not the government of Australia, the regional country most supportive of and hardwired into US nuclear planning), have shown any serious and sustained commitment to the root and branch proactive policy renewal process that would be needed to make good on the very limited commitments of RevCons past, let alone the level of globally coordinated effort its defenders judge necessary to revivify the NPT (Carlson 2019b; Behm 2020).

Secondly, leaving aside the severe legitimacy deficits of the NPT arising from the treaty’s identification of five “approved” Nuclear Possessing States, there is no indication of a viable route for the four non-NPT Nuclear Possessing States to enter the NPT regime.

Lastly, and most fundamentally in relation to the TPNW, over the more than fifty years of the treaty’s existence the five Nuclear Possessing States “recognized” under that treaty have shown no serious willingness to meet their disarmament obligations under Article 6. Half a century is enough: that route is most unlikely to open.

Of course, actions to support nuclear non-proliferation, nuclear weapons security, and arms control are almost always commendable and helpful, but it must be remembered that such welcome initiatives are distinct from nuclear disarmament, and do not function as a substitute for it.

Moreover the situation on nuclear arms regulation is more serious than many critics of the TPNW recognize. Nuclear arms control is now virtually an endangered species. As Alexey Arbatov put it in a recent review of the “the disintegration of arms control”,

‘The world’s ability to muddle through the next phase of international tensions without a major crisis, and to prevent such a crisis from escalating to nuclear Armageddon, is in doubt’ (Arbatov 2019).

Every Nuclear Possessing State is committed to “modernization” of their nuclear arsenal, and the Nuclear Supporting States of the Asia-Pacific, are not only not demurring, but in the case of the regional major allies of the US, are tightening their alliance links, nuclear and otherwise.

Contemporary mainstream reformist policy approaches to nuclear weapons based on the NPT and fading memories of a Golden Age of Arms Control are anaemic, and their near-term major success implausible. To then set the framework of necessary dialogue as one between supporters of the NPT and supporters of the TPNW seems constraining rather than productive, and to not assist discussion of more serious problems facing the universalization and institutionalisation of the TPNW: better to recognize that for the purpose of advancing nuclear disarmament, the NPT, regrettably, is a dead letter, and then concentrate on the ban treaty on the one hand, and the possibilities of the NPT in constraining proliferation¹⁹

Devaluing and Delegitimating Nuclear Weapons Vs Stigmatization

For many proponents of the nuclear ban treaty its immediate utility as international law, beyond binding the actions of States Parties, would be its potential to influence non-states parties through the formation of norms of conduct, especially a capacity to stigmatize the use and possession of nuclear weapons. Egeland’s quotation above epitomizes the positive version of that thought of the necessity and utility of stigmatisation as a key campaigning resource.

Disgust and revulsion from the use or prospect of use of nuclear weapons are entirely understandable and likely be increasingly unavoidable as the ban treaty endures, and it is hard to deny the role of such revulsion impelling people towards action on nuclear weapons²⁰ However, there are reasons to be concerned about a strategy for universalisation of the TPNW based primarily on an uncritical heightening of stigmatisation of nuclear weapons in international society. It may be wise to avoid a strategy primarily based on the trope of stigmatisation and its practice for two reasons.

Firstly, stigmatization in international relations is not a simple matter of “socialising” a passive transgressive state into a preferred norm, as at least two leading researchers on stigmatisation in international society emphasize. The TPNW stigmatization strategy draws on work over a number of years pointing to revulsion with nuclear weapons as a motivation for opposing their possession, and more particularly, their use in war. Nina Tannenwald’s classic work on the origins and dynamics of the taboo on the use of nuclear weapons has emphasized the role of the stigma attached to nuclear weapons as a key support for a nuclear taboo, and conversely as an impetus to US government officials to overcome restraints on US nuclear weapons use deriving from that stigma (Tannenwald 2005, 2018a, 2018b; Walker 2010a).

Basing her work on stigma in international society on Erving Goffman’s classic 1965 book Stigma: Notes on the Management of Spoiled Identity, Rebecca Adler-Nissen also emphasizes the normality of stigma in international society, which, she argues is

‘in part constructed through the stigmatization of “transgressive” and norm-violating states and their ways of coping with stigma.’

However, Adler-Nissen cautions against the widespread misunderstanding of such processes that sees international society founded solely on common values and norms. Stigma plays a more complex role than is often acknowledged in some constructivist accounts of states passively absorbing norms through simple processes of “internalization”. States reacting to stigma or experiencing it are active agents.

Most importantly, Adler-Nissen argues, the potency of stigma can be diminished or avoided through positive action by the stigmatised, especially when they hold the means and power to reframe negative discourses to their advantage:

‘Stigmatized states may strategically cope with their stigma, and may, in some cases, challenge and even transform a dominant moral discourse’ (Adler-Nissen 2014).

Historically one important and salient example in the Asia-Pacific has been the ability of the United States to slough off the historical stigma of the first use of nuclear weapons through censorship of the human consequences in Japan and construction of a counter-narrative of the necessity for nuclear first use to “end the war” in the Pacific, contested though that highly effective account may be from the margins of power²¹

A second reason for caution is that stigmatisation, even when it is not simply a discursive tool of the powerful against the weak or out-groups, almost always involves at least potential or incipient dehumanisation and violence. In contemporary international society, former President Trump is an adept from whom other authoritarian world leaders have learned, and who himself has learned from them. All nuclear deterrence policy must presume and robustly prepare for the use of nuclear weapons in war. In practice nuclear deterrence will always involve what we call, when in the hands of governments we dislike, the intent to use weapons of mass destruction, and which should more properly be regarded in all cases as actions on a genocidal scale. Such deterrence discourses, to be politically successful with domestic audiences in particular, necessarily start from psychosocial processes of dehumanisation of the adversary – those in Judith Butler’s useful reminder, whose lives are “not grievable” (Butler 2009)²²

Rather than founding the path towards the universalization of the nuclear ban treaty on unreflective and possibly counter-productive strategies of stigmatizing nuclear weapons, the safer and more richly generative alternative, as a number of researchers have argued, is to pursue strategies of delegitimating the possession and use of nuclear weapons and devaluing the utility of nuclear weapons in defence strategies. These two latter strategies are distinct in concept and requirement, and while not opposed, lead to the need for quite different suites of dialogue partners.

De-legitimating nuclear weapons involves engaging in strategic, political, legal, and moral discourses involving nuclear weapons to challenge and then vitiate claims of legitimacy for the use, possession, preparation for use, and assistance for and inducement to use nuclear weapons. In Nick Ritchie’s words, delegitimation involves

‘exposing the divergence of nuclear weapons practices and values from justifiable rules, consent, legal precedent, and the principle of equality’ (Ritchie 2013, 56).

A starting point is to recognize that virtually all existing international law on nuclear weapons prior to the TPNW explicitly or implicitly legitimises the right of certain countries to possess and use nuclear weapons, regardless of the opinions – and the likely fate – of the majority of the world’s countries. Once the claim of the fundamental illegitimacy of nuclear weapons is posed systematically, the discussion of why that state of barely registered méconnaissance in the face of an inherently genocidal existential situation should be tolerated can be discussed openly (Ritchie 2014, 2019; Berry et al. 2010)²³ Ritchie suggests delegitimation practices will involve

‘withdrawal of popular consent, changing the legal validity of the possession and use of nuclear weapons, and demonstrating that current nuclear practices and power relations do not reflect justifiable rules based on shared beliefs prevalent in society – in our case global society’ (Ritchie 2013, 55).

De-valuing nuclear weapons involves dialogue and debate of a different character with security community practitioners who support nuclear possession for deterrence and war-fighting, to explore and identify

• the limits of the military utility of nuclear weapons;

• the counter-productive consequences of their use; and

• alternative – and sustainable – non-nuclear security doctrines and practices.

Such engagement with national security practitioner communities will inevitably be troubling for some ban treaty proponents who may be deeply aware of wider patterns of militarization, and who will find themselves confronted with challenges around the theme of “What about defence (without nuclear weapons)?” Such challenges must not be ignored but taken on by developing new analytical capabilities and advocacy. The transnational advocacy networks that successfully undermined hegemonic global nuclear discourses solely based on nuclear deterrence, supplanting it with a revivified and politically potent humanitarian discourse, need to develop capacity to engage effectively and authoritatively on unfamiliar national arenas of defence policy beyond simply condemning nuclear weapons and asserting the need for a non-nuclear defence policy. To show that nuclear weapons are inimical to security is not the same as demonstrating in the situations of particular states that a non-specific non-nuclear defence policy will automatically give rise to sustainable security²⁴

Both projects – devaluing the utility of nuclear weapons and delegitimating nuclear weapons – can and should involve both state and civil society agents, at global, regional, and national levels, and will involve construction of new national and transnational epistemic and moral communities. Challenges to both the military utility of nuclear weapons and to the presumptive right of both Nuclear Possessing States and their dependent Nuclear Supporting States to risk nuclear next use are – in appropriately diplomatic phrasing – useful frames for regional dialogue between regional TPNW supporting states and Nuclear Supporting States.

Can We Imagine a Threshold Nuclear Disarming State?

Constructive dialogue between supporters of the ban treaty and its opponents is impeded by specious claims about the treaty. One common theme of criticism of the TPNW is that there is no likelihood of any Nuclear Possessing State ever joining the treaty²⁵

Let us assume, for the purposes of argument, that the tide of nuclear proliferation is arrested in its present situation of nine Nuclear Possessing States. Is it absurd to expect any state that possesses nuclear weapons would willingly enter into a process of giving them up? The historical record, to a limited extent, answers “No, it is not absurd”, pointing at least to the South African case and to the case of Ukraine. But these two examples are undoubtedly somewhat “special cases” – apartheid South Africa on the brink of collapse ensuring its successor majority regime did not possess nuclear weapons, and Ukraine newly independent from the former Soviet Union rejecting continued possession of its inherited but not fully controllable nuclear arsenal in favour of an explicit non-nuclear status in return for security guarantees. Furthermore, for the sake of clarifying the argument let us also leave aside the fading hopes that North Korea will one day be persuaded to trade its nuclear weapons for guarantees of regime survival, security, and financial reward²⁶

The critical question is whether there is any reason think any major Nuclear Possessing State would voluntarily relinquish its nuclear weapons by seeking to accede to the TPNW? All thinking through of questions of this kind (both con as well as pro) involves a consideration – preferably explicitly and rigorously – of counterfactuals – the essential but forbidden fruit of social inquiry as Richard Ned Lebow called them (Lebow 2010).

The United Kingdom is a difficult but plausible candidate. Britain is distinctive amongst the Nuclear Possessing States insofar as it is highly dependent on the United States for its nuclear weapon system. So extensive is this dependence on the United States that the United Kingdom is best understood not as a sovereign nuclear power but as a client nuclear state of the United States²⁷

At the beginning of the 21^st century, Malcolm Chalmers and William Walker set out an argument to the effect that a successful Scottish independence project would quite possibly render the continuation of the UK’s submarine-based nuclear capacity impractical, mainly for reasons of geography (Chalmers and Walker 2002; Walker 2010b; Chalmers and Chalmers 2014; Jack 2015; Walker 2015). That conclusion remains the case today, and in important respects, more so. The UK’s nuclear deterrent force of submarines is based at Faslane in Scotland near Glasgow, with a large nuclear munitions facility at nearby Coulport, and the ascendant Scottish National Party is committed to closing both bases. Practical options for alternative basing in what would be the remains of the United Kingdom (rUK) are highly constrained by geography and political considerations²⁸ It may well be that the government would have to consider the option of basing its UK nuclear deterrence force in the United States at Kings Bay, Georgia (Walker 2015, 20, 25, 28).

Since Chalmers and Walker opened discussion of the possible impact of Scottish independence two decades ago the structural coherence of the United Kingdom has been considerably undermined, and the probability of Scottish independence heightened, not least by the combined consequences of Brexit and the pandemic, to say nothing of the fiscal distress of the UK government. Moreover, in the intervening years the United Kingdom held a surprisingly wide-ranging public debate on the modernization of its nuclear weapons capacity through the renewal of the Trident missile submarine force. A range of views were represented, including acknowledgement by defence specialists of difficulties that the great cost of Trident renewal will cause great difficulties for the UK’s capacity to participate in global conventional operations in future US-led multilateral intervention coalitions.

Coming to power abruptly in July 2016 in the immediate aftermath of the Brexit referendum Prime Minister Theresa May terminated the Trident renewal debate immediately and authorised the nuclear renewal program. That now seems a long time ago, and it is useful to consider what would have happened if that debate about the renewal of Trident was taking place in the United Kingdom under the current circumstances. Much has happened since then to exacerbate strains on Britain’s identity as a sovereign nuclear power, along with the fiscal and domestic political capability to maintain a claim to such a role. The still developing Covid-19 pandemic, and in particular the accompanying perceived functional shrinking of the UK government into “the government of England” on the core matter of health, clearly strengthens the likelihood of another Scottish independence referendum, with a strong chance of success. Given the compounding pressures of the present conjuncture on the United Kingdom structurally, fiscally, and in terms of identity it is reasonable to suggest that there would be a much greater weight leaning in the direction of a negative decision on Trident renewal.

None of this narrative of future possibility is certain. Whether in the event of a successful referendum an independent Scotland would make good on the Scottish National Party’s commitment to close the Scottish nuclear bases is obviously uncertain, as would be the reaction of the rump UK/English government to such moves. And even more uncertain would be the response of other governments, including the other NATO nuclear powers of the United States and France. Nuclear establishments, especially so closely tied to maintenance of post-imperial status, do not give way without great resistance and conflict (Walker 2014; Chalmers and Walker 2002).

However, the claim, commonly heard in mocking terms from opponents of the TPNW, that it is impossible to seriously imagine any Nuclear Possessing State of consequence moving to the status of a Threshold Nuclear Disarming State, is simply unsupportable. It may well not happen, but the frequent denial of a realistic possibility reflects an element of compulsive insistence on the untested immutability of the global nuclear order. The TPNW as a politico-legal project of regime formation is rooted in the possibility of such a plausible, though by no means certain, future development, and provides the foundations of a legal and institutional pathway to the realisation of such a shift in the global order.

Walker’s views rest on the understanding that not only are the elements of support for nuclear possession in any given state complex (and probably overdetermined), but that the nine Nuclear Possessing States are more distinct from each other than is suggested by the standardizing label of Nuclear Weapon States (or, for that matter, that of Nuclear Possessing States). Drawing together a set of possible contributing elements in a Nuclear Possessing State, Walker suggested an important research approach to the question of threshold nuclear disarming states:

‘It would be interesting to mount a research project to compare the “distances” of the nuclear-armed states from the disarmament threshold, as assessed in terms of capabilities, strategies, regulation, identity fixation and institutional entrenchment, among other things’ (Walker 2010b, 462).

These are not simply matters for disinterested researchers. If the TPNW is to have any utility it must be based on a well-founded assessment of the future historical possibility of its primary assumption: that there will be a Threshold Nuclear Disarming State. Holding to that assumption then makes its realisation more likely.

The appearance of a Threshold Nuclear Disarming State anywhere on the planet will in itself have a profound political impact, even with the attendant uncertainty of whether that state would then proceed over the threshold. The UK’s nuclear relationship to the Asia-Pacific is now essentially nil, although the strategic and human security implications of its history of nuclear testing in Australia and Kiribati and the Marshall Islands continues. Yet even so, the appearance of a Threshold Nuclear Disarming State even from distant Europe would mark a seismic political shift in a region dominated from the dawn of the nuclear age by the Nuclear Possessing States brazenly and energetically either abjuring law aimed at prohibition as a form of nuclear regulation or, in a contrary fashion, creating legitimacy for continued nuclear possession by delimiting law’s domain.

Nuclear Supporting States and Extended Nuclear Deterrence

Most currently Nuclear Supporting Countries are allies of the United States, and almost all of these have declaratory defence policies explicitly reliant on US extended nuclear deterrence²⁹ Reliance by each of these countries on policies of extended nuclear deterrence would violate the TPNW prohibition on encouragement or inducement to use or threat of use of nuclear weapons in Article 1(e) of the treaty:

‘Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty’.

A Nuclear Supporting State government seeking to accede to the TPNW would need to abandon the policy of reliance in US extended nuclear deterrence (END), and provide convincing evidence to a TPNW Conference of the Parties of repudiation of any non-public agreements or policy arrangements with the United States to the same effect.

Clearly, in the case of Asia-Pacific allies currently explicitly relying on US extended nuclear deterrence – Australia, Japan, South Korea, and, de facto, Taiwan – repudiation of nuclear deterrence would involve a great change in their strategic outlook, which would be very difficult to imagine politically, and if that were to occur, would involve considerable changes in defence and foreign policy. Yet conceptually, it is a comparatively straightforward matter (Cormier 2020; Cormier and Hood 2017).

Without pretending that adopting such a non-nuclear-defence policy would be politically straightforward to establish for any of these countries, this brief exploration suggests that once a government was committed to such a position, there may well be relatively few obstacles to simply replacing the END policy with an alternative – unless the United States created such obstacles.

To become compliant with the treaty, any of these countries would, in addition, need to exit from any intergovernmental military or other defence coordination bodies or institutions with the United States concerning the use or planning for use of US nuclear weapons. Exiting such nuclear institutional linkages would include any secondment or embedding of defence personnel in US nuclear-related military, bureaucratic or intelligence agency positions. This move would, in theory, be somewhat easier in the Australian case because US extended nuclear deterrence arrangements with Australia are much more nebulous, not to say uncertain, than in the East Asian cases³⁰ Not only are the East Asian allies closer to nuclear threat than Australia, but Japan and South Korea have well developed bilateral nuclear policy coordination bureaucratic and military structures akin to the NATO Planning Group, which Australia does not (Leah 2014; Tanter 2011).

For campaigners for the universalization of the ban treaty these Nuclear Supporting Countries with declaratory policies of reliance on extended nuclear deterrence are the primary targets of the next phase of their work. Experience with the US response to the New Zealand repudiation of reliance on extended nuclear deterrence culminating in the passage of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act (1987) suggests that the United States would be likely to take a similar political approach to any of these countries following New Zealand and joining the TPNW.³¹ In order to limit “contagion”, the United States would seek to claim that such an act would be a violation of what the United States called in the New Zealand case – incorrectly – the “global indivisibility of extended nuclear deterrence”.

Critics of the ban treaty have made a related claim: that supporters of the treaty are exploiting, or at least not recognizing, that there is a significant strategic and political imbalance in their efforts in calling for Nuclear Supporting States to abandon extended nuclear deterrence. Matthew Harries of the International Institute of Strategic Studies summarised the issue in 2017 as one of the unfairness and folly of using democratic means to achieve nuclear disarmament in democratic states, while authoritarian Russia is immune to any comparable domestic pressures:

‘The problem is that, when one moves past abstract principles to what the ban will actually do in practice, the target of the treaty is clear: intentionally or not, it is an attack on the nuclear-armed democracies—the United States, in particular—and their allies to the near-exclusive benefit of Russia and China … If I were a Russian policymaker, I would be enthusiastically cheering on the ban movement in private, while maintaining an appropriately scornful tone in public’ (Harries 2017).

Harries is correct that one of the targets of ban treaty supporters is the reliance of US allies on assurances of extended nuclear deterrence, both in Europe and Asia. Structural imbalance is inherent in the fact that Russia and China do not extend nuclear deterrence to other countries: the incompatibility of END with the Article 1 (e) of the ban treaty is an American problem, translated to its allies. Yet here, Harries is following the argument put forward forcefully by the US “Non-Paper” of October 2016 on “Defense Implications of Potential United Nations General Assembly Nuclear Weapons Ban Treaty”, sent to all NATO member countries, urging them to boycott the treaty negotiations. Like Harries, the Non-Paper correctly identifies the implications of a treaty as envisaged by its main proponents as being deeply inimical to US insistence on a putative global indivisibility of extended nuclear deterrence.³²

George Perkovich (2020) recently renewed this line of argument “as Russia continues to add to its nuclear arsenal and repertoire of coercion and interference in the internal affairs of NATO countries.”

‘Thus, the Hippocratic question is whether and how champions of the TPNW could avoid the harm of rewarding Russian intransigence and penalizing NATO states’ adherence to democratic norms of free association and lobbying.’

The essential arguments are that peace and the security of democracies in Europe depend on the viability of US extended nuclear deterrence, which the ban treaty aims to erode. The effects of the coming treaty regime will be imbalanced, in this argument, because it will do nothing to eliminate Russian (and, by implication, Chinese) nuclear weapons, while undermining the delicate nuclear policy consensus achieved by the democratic states. Such a claim assumes that the stigmatizing effects the treaty proponents intend the treaty to generate will have no follow-on effects on such countries or their strategic environment.

The “Hippocratic” line of attack – “first, do no harm” – has a fundamental moral problem in so far as it necessarily defends the right of use of nuclear weapons for defence: nuclear deterrence policy must presume a willingness to use nuclear weapons in war if it is to function effectively. This charge is a rerun of 1980s arguments about the impossibility of what was then analysed in terms of a requirement for multilateral disarmament over unilateral disarmament. Moreover, it brings a distinctly American perspective to NATO and its nuclear operations.

Perkovich adumbrates the basic argument by applying it not only to US extended nuclear deterrence as such in Europe, but specifically to its most dangerous component – the “nuclear-sharing” arrangements that has some 150 US B-61 nuclear weapons prepositioned on airbases of Belgium, Germany, Italy, Netherlands and Turkey. This blunt defence of nuclear-sharing is surprising, since in earlier work Perkovich showed a more constructive analytical approach to the question of how countries with END policies should go about assessing their desirability³³ A decade ago Perkovich helpfully suggested three questions, somewhat different from his more recent approach:

• What are the actual threats against which extended nuclear deterrence is invoked?

• What are the probabilities attached to such threats?

• Where threats are deemed to be actionable with a nuclear response, what alternative responses or means of addressing the issue exist or could be generated?

At that time Perkovich provided a useful example of the strategy of constructing dialogue around devaluing nuclear weapons by making explicit and measurable the validity of claims by Nuclear Supporting States as to the utility or otherwise of nuclear weapons.

Each of these arguments apply to the NATO non-nuclear states as a whole regarding END, as well as to the five nuclear-sharing states. The “Hippocratic” question also applies to the Asian Nuclear Supporting States – Japan, South Korea and Australia – with regard to China. In the European case, a more useful approach would be to start with Perkovich’s 2009 questions, separate out the evident folly of the nuclear-sharing arrangements, and locate the fundamental question of the desirability of NATO as a US-led nuclear alliance in the broader questions of reconsideration of Europe’s autonomous foreign and defence policy requirements and capacities. Arguments based on devaluing nuclear weapons cannot evade consequential questions of non-nuclear security policy in concrete cases.

But, to return to the earlier discussion of extended nuclear deterrence and the TPNW, even if the politics of such a conceptually straightforward shift of policy away from reliance on extended nuclear deterrence in Nuclear Supporting States seeking to accede to the TPNW are very difficult, they become much more difficult still when a second element in the prohibitions of Article 1(e) of the TPNW is considered.

Globally Distributed NC3I: Obstacles to Compliance with the Prohibition on Assistance

A number of Nuclear Supporting Countries seeking to accede to the TPNW face another and very significant obstacle to compliance with Article 1(e) of the treaty. The prohibition of “assistance” to any of the prohibited nuclear weapons activities, applies to the hosting of elements of command, control, and communications (NC3) systems that are critical enabling components of nuclear attack planning and operations. These systems are typically global in character, both in terms of distribution around the world (and in space), and in the sense of network space³⁴

Paul Bracken recently summarized the global geographic sense of the current NC3I situation as follows:

‘Nine countries now possess nuclear weapons. Five more countries (Germany, the Netherlands, Belgium, Italy, Turkey) have U.S. nuclear weapons positioned on their territory. Other nations are so critically involved with U.S. nuclear operations through warning, intelligence, and missile defense that for all practical purposes they are part of the U.S. NC3 system (Japan, the ROK, Australia, Taiwan). This gives at least eighteen countries in total involved in nuclear or closely related NC3. Globally, no less than thirty six states are directly or indirectly involved in the projection of nuclear threat against other states (namely, the U.S. and its NATO and Pacific allies, plus the other eight nuclear armed states, all dependent in one way or another on nuclear command and control systems).’³⁵

As Bracken notes, four of these U.S. allies lie within the Asia-Pacific, all of which have defence policies openly reliant on U.S. extended nuclear deterrence, and all, more to the point, as Bracken puts it, “part of the U.S. NC3 system”. While much less often discussed in relation to compliance with the TPNW than the need to repudiate extended nuclear deterrence, the manner in which all four major U.S. Asia-Pacific allies host elements of the U.S. NC3 system on their territory contradicts to a greater or lesser degree the prohibition in Article 1(e) on ‘assistance’³⁶

The issue of NC3 systems and the TPNW can only be addressed productively on a foundation of substantial research on systems such as those Bracken refers to. These mainly, though not solely, concern US systems, and should be viewed through the technological and political integration of the nationally hosted nuclear-related elements into the US-constructed global assemblages.

Briefly, to take one regional example, Australia hosts several intelligence and military facilities that contribute to the US nuclear operations capability as elements of the US global nuclear command, control, communications and intelligence structures. Today, these US NC3I elements are juridically “joint” Australian-US facilities operated, according to the Australian government, with the full knowledge and concurrence of the Australian government³⁷

In May 2018 a senior Australian official testified to a parliamentary committee that joining the TPNW would be against Australia’s national interests, principally because of likely damage to its alliance with the United States. This potential for damage, he argued, was in large part precisely because of the nuclear-related elements of “joint” Australia-US intelligence and military facilities in Australia. The Australian government’s view is that the alliance is made up of

‘many separate interlocking structures, understandings, agreements and joint activities and facilities … [that are] incompatible with the treaty’,

It is, the official averred,

‘impossible, not practical, for Australia to restrict roles under the alliance to non-nuclear missions.’³⁸

Little further elaboration was provided on that or subsequent occasions³⁹

In fact, such matters have rarely been explained officially to the Australian public over the half century or more during which the most important of these facilities have been in existence. On the face of it, the official explanation was an extraordinary admission of an apparently willingly accepted integration of Australia into preparations for nuclear war and nuclear war-fighting, long hidden from the Australian public⁴⁰

While this situation of claimed contradiction between Australia’s alliance obligations and the requirements of possible future compliance with the TPNW may appear to be of parochial Australian concern, the implications for the countries surrounding Australia are no less significant, and are rarely discussed in regional dialogues. Prima facie, Australia could not be compliant with the treaty unless it either closed the facilities with NC3I linkages in toto or verifiably removed the nuclear-related elements of the bases. For the present Australian government and all of its recent predecessors, these requirements are impossible short of abandoning the alliance with the United States.

However, the actual situation of the most important example identified both by the government and by its critics, the Joint Defence Facility Pine Gap near Alice Springs in Central Australia, demonstrates that the government’s blanket rejection of the TPNW because “it’s impossible, not practical” to comply with Article 1(e) should be put under scrutiny.

In broad terms, Pine Gap is one of the largest US intelligence facilities outside the United States, with three main functions. It serves firstly as a command, control, and data downlink ground station to US signals intelligence satellites in geosynchronous orbits above the equator, collecting, monitoring, and downlinking for processing and analysis a wide range of types of electronic emissions within its satellites’ “footprints” covering most of the earth’s surface from the mid-Pacific to eastern Africa. Secondly, it carries out the reverse mode of signals collection, with ground antennas at Pine Gap intercepting, monitoring and analysing downlinks from a range of types of foreign satellites in geosynchronous orbit, principally communications satellites owned by both allies and adversaries⁴¹ Thirdly, it hosts a somewhat separate Relay Ground Station which relays command and control instructions and downlinks data from another set of US satellites in geosynchronous orbit carrying large infrared telescopes that detect the heat bloom of the launch of ballistic missiles, in order to both provide early warning of missile attack and to assist in US, Japanese and South Korean missile defence targeting.⁴²

Pine Gap’s nuclear connections are multiple, but the most important and immediate way in which hosting the facility would impede Australian compliance with the TPNW involves the Relay Ground Station and its linkage to a number of large and powerful Overhead Persistent Infrared (OPIR) satellites over the Pacific and Indian Oceans⁴³ The key salient fact for the TPNW is that the same infrared satellites that provide the United States with early warning of missile attack, and which are critical to US and Japanese missile defence, in time of war also provide US strategic nuclear planners with intelligence as to which adversary missiles silos have launched their missiles and are consequently empty, and those which have not, and are consequently candidate US targets⁴⁴ The data downlinked from the OPIR satellites is passed automatically through the Relay Ground Station at Pine Gap to the OPIR Mission Control Station in Colorado in near real time to feed targeting plans of a US second nuclear strike.

To comply with the TPNW’s prohibition on assistance to nuclear weapons activities, an Australian government would have to undertake one of three possible approaches to the Relay Ground Station at Pine Gap. All three would be examples of what former Australian Prime Minister Malcolm Fraser proposed as a judicious partial disentangling of Australia from elements of the US alliance as an alternative to unquestioning acceptance of a specious automatic identity of Australian and US strategic interests (Fraser 2014; Fraser and Roberts 2014). Pragmatically, the politically critical question for Australia in each case, after seven decades of alliance deeply embedded into Australian political culture, is how treaty compliance could be achieved without leading the US to terminate the ANZUS mutual security treaty.

A “maximalist” approach would be to give notice to the United States requiring the closure of the entire base – i.e. both the two signals intelligence surveillance systems as well as the Relay Ground Station. Simply requiring the closure of the base as a whole would have the virtue of comprehensiveness, but would also be politically very difficult to imagine, even in a brief counterfactual thought experiment of this kind. Leaving aside arguments about the utility to Australia of access to the space-based and ground-based signals intelligence systems at the base that would be lost, the US response would undoubtedly be drastic, and would threaten the continuation of the alliance itself – which in Australian political culture would be deemed suicidal for mainstream political parties.

In a second, “reformist” approach, the Australian government would have to request, and the United States to accept, verifiable binding legal, organisational and technical limits on specific categories of the operations of the Relay Ground Station. This second approach would involve distinguishing “defensive” functions of the OPIR system – primarily early warning of missile attack – from unarguably nuclear war-fighting Relay Ground Station links – primarily support for US retaliatory nuclear missile strikes⁴⁵ For technical reasons to do with the automatic character of the Relay Ground Station and remote control of its operations from the United States (rather than at Pine Gap itself), the level of required verification of operational separation by an Australian government would, be almost impossible to achieve, to say nothing of the political obstacles⁴⁶

However, there is a third alternative, a more promising “reformist” approach to bringing the Relay Ground Station into compliance with the requirements of the ban treaty. This third approach is based on existing redundant communications links the United States has built into its global OPIR system of satellites and ground stations to guard against destruction of NC3 ground facilities like Pine Gap in war. The existence of communications redundancy indicates a strategically viable and politically not wholly impossible pathway to compliance with the TPNW without necessarily disrupting its alliance with the United States.

The RGS at Pine Gap – which is highly vulnerable to attack – provides redundant backup to both the cross-links and the mobile stations systems but is not in itself essential to the OPIR system’s survival. All of Pine Gap’s OPIR satellites have satellite-satellite crosslinks and communications links to US relay satellites. These enable the crucial early warning data to be transmitted from one to another and then downlinked to the Mission Control Station on US soil without ever relying on the Relay Ground Station. In addition, US OPIR satellites themselves can and do downlink directly to dispersed mobile ground terminals in the United States, as well as to US combat commands around the world, such as South Korea (Schaefer 2018; Tanter 2019a).

Under this proposal an Australian government could give reasonable notice to the United States requiring the closure of the Relay Ground Station and the removal of its systems from Pine Gap. The remaining larger part of the base and its principal signals intelligence functions would be left unaffected. In this situation, if the Australian government gave the United States appropriate notice – say five years – the Relay Ground Station could be closed without significant detriment to the performance of the OPIR systems or to genuine US national security interests – although there would obviously be considerable political turbulence.

This sketch outlining the strategic, technical and political aspects of the choices facing an Australian government seeking to comply with the assistance prohibitions of the TPNW has two aims.

Firstly, a close examination of the Relay Ground Station’s technical aspects and military roles suggests that while all three pathways would be politically fraught, the third pathway shows that the Australian government’s blanket claim that it would be “impossible, not practical for Australia to restrict roles under the alliance to non-nuclear missions” can be refuted in the most egregious example of Australian assistance to prohibited nuclear activities. Of course, this proposal to close only the Relay Ground Station leaves questions about nuclear-related aspects of other parts of Pine Gap’s operations to be scrutinised, but by demonstrating a plausibly viable pathway in the most important case indicates a broader line of political and policy strategy against unexamined claims of “impossibility”.

Secondly, as Bracken’s brief survey of US NC3 activities suggests, these globally-distributed facilities pose obstacles to compliance with the prohibition on assistance to nuclear missions for the other US allies in the Asia-Pacific more broadly, as well as for NATO allies in Europe and Canada.

Hosting NC3 elements is an unavoidable issue for the TPNW regime and its supporters to consider in many US allied states.

A Verification Regime “Fit for Purpose”

The most common criticism of the TPNW has concerned verification⁴⁷ One important line of criticism regards the TPNW as a step backwards from the achievement of reforms of safeguards policy in the NPT. In particular these critics emphasize the absence in the TPNW of a binding requirement on states parties to tighten safeguards on nuclear facilities by requiring accession to the International Atomic Energy Agency’s (IAEA) Additional Protocol, rather than just requiring adherence to the longstanding but less stringent IAEA Comprehensive Safeguards Agreement.

Supporters of the ban treaty argue that in fact only a small group of TPNW signatories to date have not acceded to the Additional Protocol. Almost all are small states with very limited or no nuclear energy facilities, for whom the issue is irrelevant in practical terms. However, as the Australian safeguards specialist John Carlson has emphasized, there are at present at least four important exceptions amongst current TPNW supporters to the claim the Additional Protocol issue does not matter for the TPNW: Brazil, Argentina, Egypt and Saudi Arabia⁴⁸

Brazil is a signatory to the ban treaty, and while Argentina, Egypt and Saudi Arabia have not signed to date, all countries were active participants in the negotiations in the UN General Assembly leading to the adoption of the treaty text in 2017. All four countries have expressed interest in nuclear weapons in the past – Brazil and Argentina seriously. Some analysts are currently concerned about Brazil’s nuclear-powered submarine program as a stalking horse for a weapons program⁴⁹

After the fall of the military dictatorships in Brazil and Argentina the two countries formed the Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials (ABACC), which has intrusive bilateral verification features somewhat comparable to the Additional Protocol. The IAEA itself is a party to ABACC. Egypt has said it will sign the Additional Protocol if Israel does: a somewhat disingenuous explanation given that the accession of Israel to any NPT verification agreement is a most unlikely event in the foreseeable future. These cases undoubtedly remain important to monitor very closely⁵⁰

However, there are two further problems with most verification critiques of the TPNW. One is that they often disregard or misconstrue the verification architecture of the TPNW and the framework character of the treaty. The other, on the contrary, is that they may have too limited a sense of the verification challenges posed by the treaty, both in relation to treatment of Nuclear Possessing States wishing to join the treaty, and most importantly in the wide-ranging comprehensive verification requirements over the necessary longue durée to ensure global confidence that successful covert reconstruction of a nuclear weapons capacity by a treaty breakout state will be detected in a timely manner.

The verification architecture of the TPNW is properly understood as a design for

‘an adaptive and flexible process to address future challenges, progressively expand its scope and over time include more member States, ultimately leading to the elimination of nuclear weapons’ (Scheffran 2018, 144)⁵¹

By design, the treaty has deferred precise detail of how claims by nuclear disarming states are to be assessed for future consideration by the regular Conferences of the Parties (CoPs) specified in the treaty. The importance of designation of the treaty’s appropriate “competent international authority or authorities” to develop “verified, time-bound and irreversible elimination of nuclear weapon programs” for disarmament verification was not ignored by the treaty’s formulators. The two pathways outlined in Article 4 of the treaty (Eliminate weapons and then join, and Join and then eliminate) will require complex, and quite likely different, kinds of verification regimes. At whatever point such thresholds appear on the horizon it will be strongly and evidently in the interests of the Conference of the Parties to have already dealt substantially, if not fully, with those issues.

Obviously, under the heading of the institutionalization of the TPNW, there will be hard questions about how a “competent authority” will actually be designed, developed, built and paid for. In the meantime, as Tamara Patton and her colleagues have argued, it is highly desirable for the treaty’s Conference of the Parties to set up some kind of preparatory scientific advisory body as soon as is practicable – as was done effectively in the rather simpler case of the Comprehensive Test Ban Treaty in anticipation of its still delayed Entry into Force (Patton, Philippe, and Mian 2019; Patton and Glaser 2017; Dalton et al. 2017)⁵²

Most critics have focussed on the verification of adherence to the TPNW requirements within the nuclear-fuel cycle, and in particular, look at accounting for fissile material in terms of both possession and production of the kind that the IAEA CSA and Additional Protocol are designed to address. Clearly these remain important, and it will be desirable to continue to press for universal adherence to the Additional Protocol or a functional equivalent such as ABACC or, less satisfactorily, through NWFZ provisions. But even so, on fissile material accounting alone, after the experience of the past “surprises” of Iraq et al, no one should pretend that the current “gold standard” is the end of the story. There will be new surprises in the future, and the TPNW architecture allows for addressing those situations.

The other side of the coin is that an abolition treaty regime will involve multilateral verification capacities considerably more wide-ranging in their concerns, more precise and accurate in their assessments, and much more demanding in their robustness than anything to date. These will need to endure effectively over centuries rather than years or decades.

What will be required in the way of ban treaty verification capability to persuade virtually all countries on earth that a nuclear prohibition regime will be sufficiently reliable and robust to detect, in 100% of cases, that no country is secretly preparing to reconstitute a nuclear weapon? What kind of verification issues will have to be faced at the point of a threshold nuclear disarmer seeking to join the treaty?

Some of the most useful accounts to date of these issues include the work of Scheffran, and of Patton and her colleagues, both drawing on a major 2017 Carnegie Endowment for International Peace study titled Toward a Nuclear Firewall: Bridging the NPT’s Three Pillars. Patton and her colleagues argue that not only will fissile material accounting requirements be more stringent than at present, but that the treaty’s requirement for “verified, time-bound and irreversible elimination of nuclear weapon programs” will involve surveillance of much more than the nuclear-fuel cycle. This expansion of domains of verification that will be required under the TPNW will involve, both groups argue, developing “a comprehensive set of nuclear weapon program indicators”, which will address at least four general domains:

• fuel-cycle and reactor operations;

• nuclear weapons research and development and weaponization;

• weapons delivery and systems (payload) integration; and

• militarization (Dalton et al. 2017; Patton, Philippe, and Mian 2019).

This list of broad but compelling set of requirements touches on matters that are today overwhelmingly the domain of national unilateral verification capabilities, most prominently involving surveillance of the third and fourth of the broad categories listed above – weapons delivery, and militarisation (itself a much larger and more difficult category to define satisfactorily). These matters are today mainly addressed within the domain of verification of arms control agreements.

Patton and her colleagues point out that to date, verification of different elements in contemporary nuclear weapons assemblages have mostly been dealt with through the NPT and IAEA safeguards, while others been addressed through bodies such as the Missile Trade Control Regime and the Nuclear Suppliers Group. The Comprehensive Test Ban Treaty Organization’s (CTBTO) International Monitoring System (IMS) has been constructed to detect covert, small nuclear detonations. Yet these exemplars do not fully embrace all aspects of necessary verification capacities for the TPNW.

The CTBTO’s International Monitoring System is a multilateral – and indeed global – UN-auspiced verification capability developed to a high level of technical standard in the absence of the CTBT itself entering into force (Persbo 2016). One important aspect of the IMS is that is a multilateral system based on the coordination and integration of 89 national monitoring systems – benefitting from access to seismic, hydroacoustic, infrasound and radionuclide detection of nuclear detonation in 337 facilities worldwide⁵³ It is a genuinely multilateral body with a high level of technical achievement.

However, the IMS is based on the merger of civil/scientific networks of seismic monitoring of earthquakes with long-classified national networks of seismic and radiological detection of nuclear detonations, pioneered and dominated for much of the Cold War by the United States, which remains the world leader in classified nuclear detonation technology and analysis.

For the United States, its current nuclear detonation detection capabilities (including the space-based NUDET sensors on its Global Positioning System satellites and the legacy Defense Support Program infrared satellites) are a part of its suite of National Technical Means of Verification. These intelligence-gathering systems provide assurance to the United States that it has a reliable ability to verify compliance with particular types of arms control agreements, but were not separately constructed for verification purposes. Moreover, those intelligence capacities are closely held. They are essentially unilateral capacities, remaining under US government and military control, even in cases where some of their product is shared with allies.

In the early 1990s the Japanese National Defence Academy analyst Ushioda Setsuko went to the conceptual heart of the issue now facing the TPNW:

‘Verification is today largely unilateral and non-cooperative. Each state makes its own evaluations; it reacts to any breach of an agreement to which it is a party on the basis of its own interests. As a result, in the absence of a collective process, verification appears to be not a guarantee that the agreement will be implemented but a guarantee of the individual security of the parties’ (Ushioda 1992, 303-304)⁵⁴

The situation Ushioda was describing remains the situation today, and opens a further set of issues to be addressed concerning the institutional capacity for verification of the TPNW: how – if at all – are what are currently National Technical Means of Verification to be brought into the service of a global collective security project such as the TPNW? At present only a very small number of countries have any serious capacity to come close to multi-domain global nuclear and space surveillance. Most countries in the world would have little reason to be confident their interests would be pursued with impartiality and diligence by a multilateral verification structure dominated by the major nuclear powers.

Unilateral national surveillance facilities such as Pine Gap, and the global surveillance systems of which they are an integrated part, are potentially, depending on precise requirements, exactly relevant to address such a situation, and yet seem to be the antithesis of what is required for cooperative security. Unlikely as it may seem, it is worth asking under what institutional, legal, and security conditions could currently unilateral verification capabilities be brought into a regime of collective security? More distantly, is it possible to consider genuinely global multilateral verification institutions on the scale necessary for certainty of the continuing absence of covert nuclear weapon reconstitution?

To take the now relatively straightforward example of space-based earth observation technology, there were proposals at the height of the Cold War, originally from France, for the United Nations to develop an International Satellite Monitoring Agency (ISMA), resulting in a UN expert study, focusing on space-based imaging (United Nations Department for Disarmament Affairs 1983). While that and similar proposals died under the disdainful gorgon stare of the Cold War nuclear superpowers, the issue has returned in a number of different forms in the past two decades⁵⁵ In some respects, the idea of an ISMA-like body with a dedicated space-based earth observation capacity has been rendered at least partially redundant by advances in commercial space-based imaging which are potentially widely accessible. However, in the cases of real-time thermal signature detection of missile launches and nuclear detonations, electronic intelligence surveillance, or space security verification issues, there has been no such commercially-available development at the necessary level⁵⁶

With the current pace of nuclear weapon horizontal and vertical proliferation, long range ballistic and cruise missile and hypersonic missile proliferation, and the nuclear dimensions of the competitive militarization of space, serious assertion of collective rights to multidomain verification assurance capacities is necessary, and must engage closely and imaginatively on an informed basis, with unilateral national technical means of verification as one starting point.

Lest anyone leap to the conclusion that this amounts to an argument for the retention of the Pine Gaps of the world for such purposes, the answer is definitely not. But it is clear that there is a question of whether there are ways in which particular, partial functions of such a facility can be utilized for collective, multilateral verification purposes beyond arms control into the realm of nuclear abolition. It is hard to imagine, but then so was the idea of a nuclear ban treaty. But what has to be understood is that there has probably never been a political project in human history of such complexity and consequence as a functioning and enduring nuclear abolition verification regime. It has to be commenced somewhere.

The Discursive Consequences of Erasing the Actual Pacific from the Asia-Pacific

The design and frame of dialogue processes often has considerable effects on outcomes. Regional dialogue presumes agreement on what constitutes the region under discussion. In some respects, the geographical frame is nothing to argue about, but some approaches may turn out to be less – or more – productive, depending on the aim of the dialogue in question. ASEAN is an interesting element because as a Southeast Asian body it has sought to move beyond mainly internal considerations to engender deeper and broader linkages with East Asian and Pacific island states more broadly in its security and economic dialogue partnerships such as the ASEAN Regional Forum.

However, in practice, discussion of dialogue in “the Asia-Pacific” often omits reference to or participation by the Pacific island states that have been so supportive of the ban treaty. Most are small countries, and perhaps not significant players in the power politics version of the framing of the Asia-Pacific. That is true of many of the 86 signatories to the TPNW, but the failings of that perspective were undoubtedly part of the motivation for the UN General Assembly vote of 122–1 in July 2017 to adopt the text of the treaty. The Pacific Island Forum may not have the clout of ASEAN Regional Forum or the East Asian Summit, but it is an effective multilateral organisation in which small states often combine to pressure its larger member states, especially Australia, over both nuclear and climate issues⁵⁷

Elision or erasure of the Pacific island states from an Asia-Pacific dialogue framework would be regrettable. Inclusion of the Pacific island states in dialogue together with the East Asian Nuclear Supporting States and the largely pro-TPNW states of ASEAN would be beneficial for two practical reasons.

Firstly, the Pacific island states are mostly small countries where civil society networks have been and remain particularly strong both within and between states – a valuable characteristic for constructing dialogue networks, and one less common in ASEAN states.

Secondly, Pacific Island support for the nuclear ban treaty largely derives from the not-so-distant direct experience of nuclear testing and nuclear colonialism in the region (Maclellan 2019). Three Nuclear Possessing States have tested their nuclear weapons in the Pacific islands – the United States, the United Kingdom, and France. All three did so in Pacific colonial territories – Bikini and Enewetak in the Marshall Islands (US); Christmas Island (now Kiribati; UK and US), as well three locations in Australia (UK): and the atolls of Moruroa and Fangataufa in French Polynesia (France). In the Pacific island states, self-determination in the face of ongoing colonial possessions and nuclear issues are understandably closely linked. The ASEAN experience and situation is thus quite different from that of most of the Pacific island states. Recognition of these interlinked issues would be beneficial for dialogue with the larger and more powerful states.

Two of the key legal and political innovations in the TPNW are the positive provisions set out in Article 6 to provide for assistance to nuclear test survivors and for remediation of the environmental effects of nuclear weapons use or testing in member states. No other element of international law relating to nuclear weapons so directly addresses these matters – certainly not the NPT. Given the longterm persisting strength of opinion in Pacific island countries about the enduring human and environmental consequences of nuclear testing by external imperial powers within the living memory of many citizens of the Pacific islands, these positive provisions would seem to provide a promising and fruitful concrete topic for the regional government-civil society discussions (Maclellan 2017a, 2017b). Such initiatives would be particularly useful in bridging the tendency of major states in “the Asia-Pacific” to overlook most of the eighteen island countries in the actual Pacific⁵⁸

There are at least two issues deriving from the treaty itself that could be helpfully addressed by such wider Asia-Pacific dialogues. Firstly, a number of the smaller countries in the Pacific have quite limited governmental capacity, stretched in normal times, and sorely tested by the pandemic and climate disruption. Participation in UN activities cost considerable amounts, usually in part funded by fees paid by national governments to the UN. The ban treaty’s Conference of the Parties will need to address the question of financial assistance to such states to ensure their ability to participate appropriately in conference activities.

Secondly, there are reportedly concerns in some Pacific islands states that have experienced the human and environmental consequences of nuclear testing that they will be expect to shoulder alone the cost of the treaty’s requirements to assist survivors and remediate large-scale environmental damage. The conferences will need to address such concerns and work towards a measure of collective responsibility on all states parties, but more importantly, collectively emphasizing the unmet moral responsibilities of the Nuclear Possessing States resulting from their historical actions. Regional dialogue on delegitimating nuclear weapons could provide a way to increase awareness of these issues and consider coordinated action by regional states parties to press Nuclear Possessing States to meet their outstanding obligations.

Themes for Regional Dialogue on the TPNW

What then, are the most productive and urgent themes for discussions in Asia-Pacific dialogue on the TPNW? There is a considerable range of possibilities. Two contributors to this journal special issue who acknowledge the significance of the emergence of the ban treaty present important agendas going beyond what has become business-as-usual in contemporary commentary.

Allan Behm concludes his critique of the underwhelming approach to nuclear disarmament by recent Australian governments, inflected downwards by the pandemic:

‘At this point, the prospects of advance and sustained progress may look bleak. That is precisely why collective action is needed. For the NNWS, there are three issues that need early resurrection:

• the proposed cut-off of the production of fissionable material;

• the proclamation of a “no first use” by the NWS and the other states possessing nuclear weapons; and

• the further strengthening of the IAEA safeguards and inspections regime, and their application to the NWS.

It must be understood that the NWS are not special cases, but rather deviant cases that have failed to honour their obligations under the NPT’ (Behm 2020, 19).

Behm then suggests a five point program, one particularly oriented to the Asia-Pacific regional Nuclear Supporting States and their US ally. To paraphrase abruptly, these countries, including Australia, must

• reinvest in nuclear negotiating capacity;

• re-engage with like-minded countries;

• work to ensure New START is rekindled, with China involved;

• persuade the United States that nuclear war is never in the interest of the United States or its allies; and

• listen to the voices of the ASEAN countries – “the economic powerhouse of the 21st century”.

All of these items are salient and urgent to support. None of these agenda items is either in any way unimportant in themselves or inimical to the advancement of the TPNW. But all are founded on the continued legitimacy of nuclear weapons possession and use – however much that end state is understood to be a matter of existential danger. If the primary proximate task of the ban treaty is to devalue and delegitimate nuclear weapons, then these elements of Behm’s agenda are tasks in parallel with, not in place of, that goal⁵⁹

In the context of a review of nuclear command, control and communications Hayes argues that

‘It is urgent, therefore, to commence dialogue within and between nuclear-armed states on the legal standards against which NC3 must be measured and transparency with regard to the achievement of minimum levels of NC3 performance.’

Since NC3(I) facilities are located in each of the Nuclear Supporting States in the region, Hayes’ call for urgent reform spelled out in a clear and concise Global NC3 Code of Conduct is highly relevant to the region. As with Behm’s agenda, progress toward these important concrete reforms of nuclear weapons operations practice would significantly reduce the likelihood of nuclear next use. Yet, such an NC3 code necessarily legitimates the possession, and use, of nuclear weapons, albeit with horror.

Adding the twin strategies of devaluing and delegitimating nuclear weapons to agendas of otherwise desirable reforms on arms control, nuclear security, and proliferation that tend to legitimate nuclear weapons countervails their tendency to defer elimination of nuclear weapons to an ever-receding distant future.

Deeply thoughtful “reform” strategies that are intensely sensitive to the current nuclear dangers such as those put forward by Behm already point to some required strands of devaluing or questioning the military utility of nuclear weapons, such as persuading the United States that “that nuclear war is never in the interests of the US or its allies”.

Given the historic commitment of governments in Southeast Asia and the Pacific to the goals of two nuclear weapon free zones, dialogue with regional Nuclear Supporting Countries on the extension and deepening of the requirements of those zones will generate questions on both the value of nuclear weapons and their legitimacy.

To be just a little un-diplomatic, it might be interesting to see what reply an Australian government would give to a politely worded discussion starter from ASEAN signatories to the TPNW as to why Australia feels the need for defence based on extended nuclear deterrence. It might be felt at this point, that such a discussion should be unnecessary, for surely the felt need for nuclear defence would be a matter that the Australian government has spelled out with care and detail in official public documents as well as in closed door diplomatic settings?

In fact, such is not the case. Defence White Paper and similar Australian government references to the rationale for reliance on extended nuclear deterrence are a matter of sentences, not paragraphs, let alone serious explanation weighing all relevant aspects at an appropriate level of detail.

Since historically, the long-running actual Australian government answer to that question in the past would have pointed to a putative nuclear threat from Indonesia, one of the leaders of ASEAN, such a dialogue could lead to a productive discussion about the costs and benefits on both sides of nuclear defence.

Similarly, the question of the circumstances under which an Australian government (or that of Japan or South Korea) believes the use of nuclear weapons to be appropriate would be a matter of interest to regional non-nuclear governments inclined to concern on the matter. And it is one that it might be thought an Australian government would have an answer of some detail and argumentative strength ready to hand⁶⁰

At present, it appears to be unlikely that there is such an argument in detail already prepared for such purposes by the Australian government. On the only occasion in recent decades where an Australian government official of any seniority has attempted to provide a public answer to such a question the result has been deeply embarrassing⁶¹ During a hearing before the Senate Foreign Affairs, Defence and Trade Committee in October 2017, a senator asked a senior foreign affairs official a simple question:

‘In what circumstances does the government’s security doctrine anticipate that using nuclear weapons would be appropriate?’

Amid a flurry of “ums” and “errs” and flustered searching through files of talking points, to no avail, the answer proffered was, in its entirety:

‘Senator, as we all know, extended deterrence is something which comes to the fore in a situation of extreme emergency, of a sort that has been referred to in terms of self-defence.’

At a minimum, dialogue with neighbouring countries not reliant on nuclear defence would focus the mind of those reliant on nuclear defence as to exactly how Australia would expect nuclear weapons to be used, with the supplementary line of discussion as to under what circumstances would such an action be of military utility, compared with other approaches to defence under the nominated circumstances.

In the matter of legitimacy, a dialogue between Australia and sceptical neighbours might involve asking something like

‘What leads Australia to believe it has the right to inflict the human and environmental and strategic consequences of that policy on neighbouring countries in the event Australia calls on the U.S. to make good on its promises?’

Fundamentally, the first use of the establishment of the TPNW regime is not specifically legal: the majority of ASEAN states being States Parties to the TPNW will not have a legal effect on Australia unless Australia specifically invites that outcome. But the most important consequence is that Nuclear Supporting States will find themselves in the position of having to explain themselves on matters of the value and legitimacy of nuclear weapons they had hitherto regarded as just “obvious”, not needing any justification beyond vague reference to unspecific threats and unquestioned utility and legitimacy of nuclear deterrence.

Regional dialogue about the utility and legitimacy of nuclear weapons could well, in Ritchie’s phrasing, lead to a demonstration within the dialogic process “that current nuclear practices and power relations do not reflect justifiable rules based on shared beliefs prevalent in society”. Here in a regional dimension of global society, such dialogue would at least commence an exploration of accountability for reliance on nuclear weapons (Ritchie 2013, 55, 2014, 618).

Both sets of questions – questioning military utility and legitimacy – are relevant to Japan and South Korea, and could be productively explored in dialogue sets with Southeast Asian and Pacific islands partners. Both countries, together with Australia, are increasingly concerned to foster closer strategic ties with both Southeast Asia and the countries of the Pacific islands.

Given the importance to the countries of Southeast Asia and the Pacific islands of membership of their respective Nuclear Weapons Free Zones, dialogue between the states that make up the majority of those zones (including Mongolia) and regional Nuclear Supporting Countries – Australia (a member of the SPNWFZ), Japan, and South Korea – on the characteristics of NWFZs with their shared accepted intent to constrain nuclear weapons use could lead to an exploration of pathways for deepening and extending zone obligations and more explicitly addressing issues of both accountability for the activities prohibited under the TPNW, and responsibility for positive support for nuclear test survivors and remediation of nuclear test sacrifice zones.

Such a theme of discussion could have three particular shared consequences amongst participants. Firstly, this dialogue may well lay the ground for understanding of shared experiences previously either not understood or not acknowledged. The example that comes most readily to mind is exactly the shared experience of use of nuclear weapons on their respective citizenries⁶²

Secondly, such discussion could advance discussion of the desirability of a Northeast Asian Nuclear Weapons Free Zone, and exploration of both particular models and possible pathways (Hamel-Green 2018). All NWFZ concepts implicitly advance awareness of differing understandings of accountability in relation to different aspects of nuclear weapons.

Thirdly, successful dialogue to progress understanding of the elements of nuclear constraint in both the TPNW and NWFZs may provide opportunities for supporters of the TPNW, Nuclear Supporting States, and Nuclear Possessing States to find common cause on new pathways to reverse the to date intractable North Korean commitment to nuclear weapons.

Certainly any element of common cause on matters of nuclear restraint between Nuclear Supporting Countries and proponents of the TPNW opens small fissures of possibility in the presumptive unity of END recipients and provider.

The TPNW in Time of Pandemic and Massive Climate Disruption

Many have commented on the social and political system stresses imposed by the Covid-19 pandemic, and the nexus between morbidity and mortality on the one hand, and the key characteristics of particular political and economic structures on the other. Others have commented insightfully on the surprising number of ways in which the current pandemic has already exacerbated or multiplied existing dangers of dependence on nuclear weapons for defence. The importance of the TPNW to move from unquestioned acceptance of nuclear weapons to universal prohibition as a tool for ultimate elimination is heightened by such an awareness of the unfolding manifold impacts of global pandemic in the global social system.

The need for the TPNW and the campaign for the realisation of its aims is multiplied by a more threatening factor: the now unavoidable impact of climate disruption and its globally differentially distributed consequences on global social relations and political systems. The current pandemic is, by comparison, a reasonably low-level system stress test – one which has not yielded reassuring results. Climate disruption of a known level is now built into future history for at least another quarter century, with the small possibility of lessening subsequently dependent on climate mitigation regimes in the meantime ensuring emission rates slow massively and adaptation measures are both effective and, on balance, positive.

Essentially we are still in a position where climate disruption in the rich and powerful countries of the world is not yet socially visible to their domestic populations to the level we can expect in the lifetimes of adults now living. Of course, climate change is already matter of discussion and debate, but nothing of the kind that will be reached when the richest parts of the world begin to experience the equivalents of three or more Hurricane Katrinas a year. Such events will generate visceral fear in those populations of a kind more associated with the experience of major war than with pandemic ameliorated by the prospect of vaccines.

Whatever the structure of regimes of mitigation and adaptation that emerge from the current relative stasis or at best slow burn on climate awareness, there will be, by the time we reach that point defined by socially visible deep climate impacts in rich countries (to say nothing of The Rest), and deep fear-driven policy, domestic and international. These developments will inevitably result in processes of blame, of displacement of accountability, and reciprocal dyads of resentment.

There have already been examples of displacement of climate accountability from the richer carbon-indebted countries onto generally poorer tropical rainforest countries through the mechanism of paying such countries to not cut down their remaining tropical rainforest. Most examples have been something of a debacle for the understandable reason that in such countries rainforests are already a locus of competing interests – often violently so. As such there was an added burden on those socio-ecosystems of what was represented as “a failure to provide carbon services contracted for”, as has often been the complaint of rich countries that have entered such contracts. Indeed at one point it looked as if some of those wealthy carbon-indebted countries such as Australia were about to offer foreign aid in the form of assistance to police forest management.

When climate disruption progresses along a path that readily foreseeable there will be a pattern of international conflict that will be necessarily worldwide given the nature of the drivers. Long-lived structures of threat and accountability, whether in the realm of the real or fantasy. Despite the many ways in which it would not be wholly correct, the Cold War is one relevant model.

This deeply concerning possibility constitutes the strongest argument for the urgency of work on nuclear weapons prohibition and elimination. If the world enters that period of intense, world-wide climate conflict without something close to nuclear elimination, then the current pandemic stress test will seem to be as nothing.

Acknowledgments

An earlier version of this paper was presented to the 75th Anniversary Nagasaki Nuclear-Pandemic Nexus Scenario Project, October 31-November 1, and November 14-15, 2020, and published as a working paper by the Nautilus Institute. I thank the organisers of the project for their kind invitation to participate: the Research Center for Nuclear Weapons Abolition, Nagasaki University (RECNA), the Nautilus Institute, Asia Pacific Leadership Network for Nuclear Non- proliferation and Disarmament. I am particularly grateful to Peter Hayes and to Anna Hood for a close reading of an earlier draft. Their extensive comments greatly improved the work, though of course, neither bears any responsibility for its remaining flaws. I also thank Namrata Goswami and John Carlson for their helpful comments on the workshop paper. The research described in this paper was supported by the Asia Pacific Leadership Network.

Disclosure Statement

No potential conflict of interest was reported by the author.

Additional information

Notes on contributors

Richard Tanter

Richard Tanter is a Senior Research Associate at the Nautilus Institute and teaches international relations at the University of Melbourne. He is past president of the Australian board of the International Campaign Against Nuclear Weapons (ICAN).

Notes

¹ On the historical presence of U.S. nuclear weapons and NC3 facilities in the Pacific see, for example, Norris, Arkin, and Burr (1999); Norris, Arkin, and Burr (2000); Hayes, Zarsky, and Bello (1987); Kristensen (1999); Ball (1980); Hager (1996).

² While this formulation is correct, the United Kingdom territorial presence in the Pacific is now restricted to the 47 km² of the Pitcairn Islands and their 50 or so people, and in the Indian Ocean to its contested British Indian Ocean Territory in the forcibly depopulated Chagos Archipelago, centring on the United States strategic military base at Diego Garcia. Important as Diego Garcia is to the United States and its nuclear weapons activities, a British nuclear presence in the Pacific can be reasonably discounted for current purposes. On the contrary, however, France is increasingly making a claim to be an Indo-Pacific power on the basis of its island possessions in the two oceans. Although the military reality behind this grand, not to say, grandiose, claim may be disputed, the nuclear weapons-capable aircraft carrier Charles de Gaulle has been repeatedly deployed to the Indian Ocean. See for example, see Grare (2020).

³ ICAN spokesperson Tim Wright made this point in a critique of the United Kingdom’s claim to responsible nuclear possession and adherence to the NPT while modernizing its nuclear strike force. The NPT, Wright argued, “is not a licence for five nations to retain nuclear weapons in perpetuity. It does not confer any legitimacy on their weapons” (Wright 2016). On nuclear hegemony, see Hayes (2018); Ritchie (2014); Ritchie (2019).

⁴ United Nations Treaty Collection, Status of Treaties, Chapter XXVI, 9: Treaty on the Prohibition of Nuclear Weapons; International Committee of the Red Cross, Advisory Service on International Humanitarian Law, “2017 Treaty on the Prohibition of Nuclear Weapons: Ratification Kit”, 24 April 2018.

⁵ “The consent of the states parties to the treaty in question is a vital factor, since states may (in the absence of a rule being also one of customary law) be bound only by their consent. Treaties are in this sense contracts between states and if they do not receive the consent of the various states, their provisions will not be binding upon them” (Shaw 2018, 690).

⁶ Hood follows Ritchie’s exploration of devaluing nuclear weapons: Ritchie (2013) and Ritchie (2014).

⁷ A large number of agreements on arms control and nuclear security could be regarded in this manner.

⁸ Australia joined the South Pacific Nuclear Free Zone after the Treaty of Rarotonga excluded prohibition of transit of nuclear weapons within the zone.

⁹ This terse summary of Hood’s argument neglects its complexities and subtleties: “Of course, the extent to which the legal instruments are partial in nature varies (for example, as noted above, it is questionable just how partial the CTBT is). Further, some of the legal instruments discussed – such as the NPT – have become more universal over time.” (Hood 2020, 27–28).

¹⁰ Caballero-Anthony (2020) also argues that there is fertile ground for dialogue in Southeast Asia is most welcome. From a somewhat different position, this paper takes up the challenge to build on the foundations of her initiative.

¹¹ South Asia is an important and separate “nuclear” region that links China, India, and Pakistan to the Northeast Asian nuclear threat system, and in turn to the global nuclear threat system involving the United States and Europe. Important as the region is in terms of the risk of nuclear war, this paper will not address how the TPNW will enter into the nuclear discourse and evolution of nuclear commitments in South Asia.

¹² In addition the Mongolian Nuclear Weapon Free Status covers its own territory, and is recognized by the United Nations as conforming to the obligations of a single-state nuclear weapon-free zone under United Nations General Assembly Resolution 3261 F of 9 December 1974. Nuclear Weapon Free Status of Mongolia, Nuclear Threat Initiative. On the proposed Northeast Asia Nuclear Weapon Free Zone see Hamel-Green (2018); and Nautilus Institute, Northeast Asia Nuclear Weapon Free Zone Briefing Book.

¹³ Some sources classify Thailand as a United States ally in Southeast Asia, and accordingly cite its strong support for the ban treaty to contradict erroneous claims that adherence to the treaty is incompatible with alliance with a nuclear state. There is in fact no foundation for the claim that the treaty prohibits membership in an alliance with a nuclear state: what would be prohibited would be a specifically nuclear alliance in terms of Article 1(e) of the TPNW. Use of the Thailand case as a paradigm of a US ally for this purpose is in any case a weak case. The claim for “U.S. ally” status for Thailand is based on the restricted Congressional formulation for section 644(q) of the Foreign Assistance Act of 1961 (22 U.S.C. 2403(q)). That category exists for the purpose of approving certain categories of Foreign Military Sales. The sense in which the NATO countries or Japan, South Korea or Australia are “allies” of the United States is much more substantial on both sides of the equation. Thailand and the Philippines do have defence agreements with the United States, but they are of much less contemporary significance for the United States by comparison. The fact that in the past Thailand and the Philippines had much stronger defence relations with the United States, including in the Philippines case hosting nuclear weapons, is not relevant.

¹⁴ Singapore, having taken an active part in the treaty negotiations, and apparently positively disposed, abstained from the vote. According to discussion with diplomatic and ICAN sources, it is not clear what lead to an apparently last minute change of voting intention, or how final this position will turn out to be.

¹⁵ “Briefing on Nuclear Ban Treaty by NSC Senior Director Christopher Ford”, Carnegie Endowment for International Peace, 22 August 2017, at https://carnegieendowment.org/2017/08/22/briefing-on-nuclear-ban-treaty-by-nsc-senior-director-christopher-ford-event-5675.

¹⁶ See for example, the similarity of the September 2020 letter to NATO, United States Non-Paper: “Defense Impacts of Potential United Nations General Assembly Nuclear Weapons Ban Treaty”; Note by the Secretary,’ AC/333-N(2016)0029 (INV), 17 October 2016, annex 2. f.

¹⁷ In helpful comments on an earlier version of this paper, John Carlson forcefully rejected this argument, arguing primarily that the problem is not with the NPT as a treaty, but with the behaviour of certain states parties to the treaty. We can disagree about that, but he makes the reasonable, though somewhat separate, point that the NPT remains the key legal restraint on proliferation, and if that limiting element were to be removed, nuclear disarmament becomes more difficult.

¹⁸ Two of the strongest recent cases for the primacy of the NPT are by John Carlson and by Allan Behm, both former Australian officials with extensive experience in disarmament and arms control issues. See Carlson (2019a); Carlson (2019b); Behm (2020). It should be noted that both Carlson and Behm indicate that the level of governmental commitment needed to impel the reforms of the NPT they urge as essential are very difficult to foresee under current circumstances. Behm: “The problem is that the non-proliferation edifice is essentially a façade resting on a single corner, and that corner is crumbling. The question that faces the parties to the NPT is whether they want to strengthen the edifice – and the cornerstone – or whether they are prepared to see the NPT go the way of the New-START – desuetude. Either way, there is much at stake” (Behm 2020, 17).

¹⁹ However, evaluation of the utility of the NPT for disarmament is a matter on which reasonable people may differ, and positions on this issue may also shape-shift and differ in subtle but important ways depending on their stance, opening at least the possibility of some common ground on which to pressure the nuclear-armed and umbrella states to disarm and reduce nuclear war risk during the disarmament process rather than the current trend of nuclear armament and modernization, and increased risk of nuclear war.

²⁰ And of course, it is important for supporters of the TPNW to recognize that many serious proponents of nuclear deterrence as a foundation of global security also feel the same disgust with the prospect of actual use of the weapons in war if deterrence fails. Self-righteousness, an occupational hazard of peace campaigners, should not detract from the need in such contexts to demonstrate the errors of reliance on nuclear weapons for defence, in terms of both legitimacy and utility.

²¹ A second relevant example is that of Israel’s possession of nuclear weapons, a fact “politely” not mentioned in public by the United States and its allies in a highly effective fig leaf deflection of stigma of Israel. US assistance to Israel’s management of stigmatization is based on brazening out an evident double standard. Somewhat similarly, the Trump administration sought to deflect shaming of India’s March 2019 anti-satellite test and the space debris it generated. The Indian government maintained that, unlike the Chinese 2007 ASAT test much criticized by the United States as a matter of protecting a global public good, the debris created by India’s test was much less in quantity and longevity, even though NASA estimated the Indian test raised the collision risk for the International Space Station by almost half. However, here, as in the nuclear case, a more significant consequence of the failure to acknowledge the unacceptability of behaviours otherwise judged to be shameful is the dissuasion of the establishment of appropriate norms in international society: “While the U.S. continues to raise concerns about the 2007 Chinese ASAT test, it refrained from calling for a norm against such testing, most likely because U.S. officials want to maximize their own freedom of action for missile defense or ASAT testing. The only norm the U.S. seems to have successfully established is that it is OK to test kinetic ASAT weapons against satellites, as long as you try and minimize the resulting orbital debris”(Weeden and Samson 2019). I am grateful to Namrata Goswami for pointing out this example.

²² Butler also reminds us of the media framing of “who is grievable” and who are to be the officialised targets of stigmatisation characterising public discourse the United States under the Trump administration. See also Butler (2020).

²³ Paradoxically, contrary to its title, Berry et al. (2010) provides one of the best reviews devaluing the utility of nuclear weapons.

²⁴ See the important work of Ritchie and Egeland on the character of transnational advocacy networks and the role they played in the civil society partnerships with progressive governments in the path to the establishment of the ban treaty (Ritchie and Egeland 2018). It may also be the case that for this nationally-oriented impact on defence and security policy the small, highly knowledgeable transnational advocacy networks (and their similarly structured nationally-based partners) may be less effective than other forms of mass movement formations.

²⁵ For a recent example see Perkovich (2020).

²⁶ William Walker’s point about the differences of each of the Nuclear Possessing States paths to that condition applies particularly to the DPRK. Not only is it a state that has “suspended” its membership of the NPT, but it is also distinguished by a history of making, and receiving, overt nuclear threats, and then three decades of US and allied attempts to bring the DPRK to voluntarily relinquish its nuclear weapons.

²⁷ The United Kingdom is dependent on the United States for the leased Trident II D5 missiles to be launched from on its submarines; the Anglicized W76-1 warhead and Mk4/4A re-entry vehicle designed at Los Alamos National Laboratory and manufactured at Pantex, the General Dynamics Fire Control System, and the MC4700 arming, fuzing, and firing system built at the Sandia National Laboratory (operated by Lockheed Martin). See Ritchie (2010).

²⁸ The Scottish government has used the “RUK” abbreviation to refer to a possible future “rest of UK” country or its government. Jack (2015) uses the term “rUK”. Chalmers and Chalmers (2014 reviewed alternative nuclear submarine homeport options in detail, arguing that the naval base at Devonport in southern England and Milford Sound in Wales would be the most likely candidates. Both would present the rUK government with considerable relocation difficulties to overcome.

²⁹ The standard list of recipients of US extended nuclear deterrence consists of the 24 NATO allies that do not possess nuclear weapons (i.e. excluding France and the United Kingdom), together with Japan, Korea, Australia, and de facto, Taiwan. For an argument on the doubt that Australia is in fact an assured recipient of US END, see Tanter (2011).

³⁰ On the nebulous, not to say imaginary, characteristics of nature of Australian reliance on US Extended nuclear deterrence, see Tanter (2011), and in particular, Behm (2020, 20): “Extended nuclear deterrence theory has gradually morphed into a kind of deterrence theology – a belief system founded on a codified set of indemonstrable doctrines”.

³¹ It should be noted that US suspension of its ANZUS treaty obligations to New Zealand did not impede Five Eyes signals intelligence cooperation between the intelligence agencies of two countries, nor, over at least the past two decades, a comprehensive resumption of non-nuclear military ties, including New Zealand participation in US-led wars in Afghanistan and Iraq. See Hager (1996); Hager (2010).

³² United States Non-Paper: “Defense Implications of Potential United Nations General Assembly Nuclear Weapons Ban Treaty”, Committee on Proliferation, NATO, 17 October 2016.

³³ See Perkovich (2009) and his comments in “Are the Requirements for Extended Deterrence Changing?” Panel discussion at the 2009 Carnegie International Nonproliferation Conference: The Nuclear Order – Build or Break (6 April 2009).

³⁴ Alternatively, NC3I, to include intelligence systems that enable nuclear operations.

³⁵ This is of course, only a glimpse of Bracken’s concerns in his response to a large set of papers at a Nautilus Institute workshop on NC3 (Bracken 2019). See also Hayes et al. (2019) and numerous studies published as Nautilus Institute Special Reports in 2019.

³⁶ I leave aside for the present the issues raised for compliance with Article 1(f).

³⁷ To avoid misunderstanding, in the Australian case these facilities are today joint in a real sense to a large extent. In the paradigm case of the Joint Defence Facility Pine Gap in Central Australia discussed below, Australians make up half of the work force, are present at all levels and all sections of the base, and fill the positions of deputy chief of facility and other senior positions along with Americans. This is quite different from the situation at Pine Gap’s companion station in the United Kingdom, RAF Menwith Hill, which can only be regarded as nominally and minimally “joint”. On the other hand if an NC3 facility in Australia was built by the United States, paid for by the United States, and can only function as part of a US globally distributed technologically system, then it is best regarded as US facility to which Australia has greater or lesser degrees of access. See Ball, Robinson, and Tanter (2016); Tanter (2018) and the discussion of the Australian doctrine of “Full Knowledge and Concurrence” by Graeme Dobell (2013).

³⁸ Mr. Richard Sadleir, First Assistant Secretary, International Security Division, Department of Foreign Affairs and Trade and Dr John Kalish, Acting Director General, Australian Safeguards and Non-Proliferation Office. Extract from testimony to the Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Estimates Hearing, (31 May 2018), pp. 121–125.

³⁹ In December 2018, a senior representative of Sadleir’s department explicitly confirmed to the author in a personal communication that Sadleir’s statement represented government policy, concluding that “The Government believes that it would not be possible for Australia to unpick and restrict cooperation with the United States to non-nuclear missions alone.” Jeff Robinson, Assistant Secretary, Arms Control and Counter-Proliferation Branch, Department of Foreign Affairs and Trade, to Richard Tanter, 18 December 2018.

⁴⁰ The most prominent Australian analyst of these Australian nuclear-related facilities, Desmond Ball, frequently described the way in which “American installations in Australia have always been the subjects of continued lack of candour on the part of the United States and of extraordinary secrecy, evasion and deception on the part of Australian governments.” Ball (1980, 10). This was a view Ball maintained until his death in 2016. See also 2012b). For a unique exploration of the place of Pine Gap in Australia and its political culture, see Finnane (2020).

⁴¹ Other activities at Pine Gap are of considerable importance to Southeast Asia, as shown clearly in the revelations by Edward Snowden in 2013–14 that Australia’s signals intelligence agency bugged the cell phones of the Indonesian president, his wife and other senior officials, and on other occasions intercepted the communications of Indonesian trade official negotiating with the United States, and offered the product to the US. Pine Gap, along with other Australian listening stations made this possible. See the discussion in Tanter (2014).

⁴² See the research papers on Pine Gap by Desmond Ball, Bill Robinson and Richard Tanter collected as The Pine Gap Project. Ball and Tanter conducted a parallel research project on Japanese electronic intelligence and US electronic intelligence in Japan. The books and papers in that Japan-centred project are collected as The Japan SIGINT Project. For one approach to some of the nuclear war implications of that research see Ayson and Ball (2014). There is a separate question about the Harold E Holt Naval Communications Station at North West Cape in Western Australia which is a longstanding Very Low Frequency communication link to submerged US submarines, historically including both strategic ballistic missile submarines and nuclear-armed attack submarines. The extent to which this remains the case on both counts is an ongoing research question. If a decision on compliance with the TPNW of hosting the VLF station had to be taken today, there would be a strong argument for calling for a precautionary approach, and requiring confirmation of exclusion of US nuclear weapon-related communications from the North West Cape facility.

⁴³ Pine Gap is currently linked to both legacy Defense Support Program satellites and Space-Based Infra Red System (SBIRS) infrared satellites.

⁴⁴ There is a parallel but less well-researched second strike targeting issue concerning assessment by the OPIR satellites of which adversary nuclear missile submarines have launched weapons. That involves an assessment of the extent to which the United States was certain of the location of those submarines, and how precisely. Note the claim by senior US figures that in the latter days of the Cold War the United States was certain of the locations of Soviet SSBNs at any given time. See Long and Green (2012).

⁴⁵ For clarity for the present, let us leave aside arguments as to whether RGS support for US and Japanese missile defence systems should be regarded as “defensive” and not inherently a matter of prohibited nuclear assistance under the TPNW.

⁴⁶ These technical obstacles were recognised by Australian defence officials at the time of Cabinet approval of the establishment of the Relay Ground Station in 1997, but advised that these obstacles were not insuperable. This conclusion does appear not to have been discussed by the relevant ministers in the National Security Committee meeting. See Tanter (2019b); and Tanter (2019a).

⁴⁷ A prominent critic on the topic of verification deficits in the TPNW in this region has been the Australian safeguards specialist John Carlson. See, for example, Carlson (2018); Carlson (2019a).

⁴⁸ Both Algeria and the UAE also supported the adoption of the text of the TPNW but have not signed either the treaty or the Additional Protocol. Both are countries of nuclear concern to some extent.

⁴⁹ See Kassenova (2014); and Kassenova (2016).

⁵⁰ “Status List”, Conclusion of Additional Protocols and Small Quantities Protocols, Status as of 31 December 2020, International Atomic Energy Agency. https://www.iaea.org/sites/default/files/20/01/sg-agreements-comprehensive-status.pdf. On Brazil, Argentina and Egypt, see, for example, Kassenova (2014); Dalaqua (2019); Bandarra (2019); Wheeler (2009); and “Egypt – Nuclear”, Nuclear Threat Initiative, updated July 2014. https://www.nti.org/learn/countries/egypt/nuclear/.

⁵¹ Scheffran provides an excellent and detailed explication of the challenges facing the TPNW verification regime and directions for responses.

⁵² For a recent review of other approaches to national and other multilateral disarmament verification centred on the NPT, see “Means to Reinforce Research on Nuclear Disarmament Verification: Report on a Series of Regional Conversations”, Verification Matters: VERTIC Research Reports, Number 13, (November 2017).

⁵³ Comprehensive Test Ban Treaty Organization, “Overview of the verification regime”, [accessed 16 November 2020ʹ]. See also Persbo (2016).

⁵⁴ See also Ushioda (1994). On the discussion of Ushioda and related issues, see Tanter (2012c) and at slightly greater length in Tanter (2012a).

⁵⁵ This paragraph is adapted from Tanter (2012b, 206–207) and Tanter (2012b, 206–207). See also Jasani (2003); Findlay (2005); Dorn (1990); United Nations Office for Disarmament Affairs (2008).

⁵⁶ For one discussion of possibilities on the latter see Dorn (2007).

⁵⁷ In a suggestive parallel, small island developing states in the Caribbean and the Pacific, organised into the Alliance of Small Island States (AOSIS), have had a disproportionately large role in UN climate negotiations in concert with EU states through the High Ambition Coalition. See Hirsch (2016); and Ella Plumanns and Eckersley (2017). Notably only the only Asian member states of the HAC are Japan, Mongolia, and Pakistan.

⁵⁸ Deepening awareness of ongoing human and environmental impacts of nuclear test through Asia-Pacific dialogue of this kind may also raise awareness of impacts at other nuclear test sites in the wider Asia-Pacific region. These would include Lop Nur, Xinjiang, China; Semipalatinsk, Kazakhstan; Pokhran, Rajasthan, India; Pakistan’s test sites in Kirana Hills, Punjab Province, Ras Koh, Province, and Wazir Khan Khosa, Kharan Desert, Balochistan Province; and Pungggye-ri, North Hamgyong, North Korea.

⁵⁹ I suspect Behm would agree with me that the primary task, properly understood, is the avoidance of nuclear next use – for as long as can conceive of. We would differ as to the priority of allocation of scarce political and diplomatic resources (in government and civil society) to activities leading to that end. My own working assumption is that we will never know, without doubt, a priori what is the most productive route to a shared goal. Under that condition, the first rule must be to ensure that work towards one pathway does not negate or obstruct or obscure the other.

⁶⁰ In the following examples I concentrate on Australia as the representative Nuclear supporting State. In the case of Japan, the only other country in the group I know well enough to risk a comment on, I very much doubt that the situation is substantially different.

⁶¹ Official Committee Hansard, Senate, Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Estimates, Thursday, 26 October 2017, p.118. https://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/5d7f76de-3c23-4c9a-a0c6-35cc9283a933/toc_pdf/Foreign%20Affairs,%20Defence%20and%20Trade%20Legislation%20Committee_2017_10_26_5682_Official.pdf.

The exchange in full reads:

‘Senator SINGH: In what circumstances does the government’s security doctrine anticipate that using nuclear weapons would be appropriate?

Mr Sadleir: Senator, as we all know, extended deterrence is something which comes to the fore in a situation of extreme emergency of the sort that has been referred to in terms of self-defence. If you’d like me to elaborate on that, I’m happy to take that on notice and come back to you.

Senator SINGH: I just can’t imagine any circumstance when nuclear weapons would ever be appropriate.’

The two minute video of the exchange is available at “Senate Estimates – Question regarding the appropriateness of using nuclear weapons”, YouTube, 26 October 2017. https://www.youtube.com/watch?app=desktop&v=xd_rYKJ6P7w.

⁶² This would include the experiences in Japan of the hibakusha of Hiroshima and Nagasaki; and in South Korea, the Korean hibakusha in those cities in 1945. In the Pacific islands, it would include the experience of the survivors (including often military veterans) of US, British, and French nuclear testing – which in the French case continued until as late as 1996. In Australia, twelve “major tests” of fission weapons were carried out between 1952–1957, but the more numerous and more environmentally destructive “minor tests” continued to 1963.