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Is Australia violating the Non-Proliferation Treaty?

In Nuclear abolition, Nuclear Guardianship, Nuclear Policy, Peace, War on March 24, 2017 at 9:45 pm

BY Tim Wright

23rd March, 2017

On 27 March, most of the world’s nations will begin work on a UN
treaty to prohibit nuclear weapons. This will be the first time in
more than two decades that multilateral nuclear disarmament
negotiations have taken place. Australia, regrettably, will not be
represented. It announced last month that it plans to boycott the
historic talks, as the treaty is not in our ‘national interests’.

Successive federal governments have argued that US nuclear weapons are
indispensable for Australia’s security – shielding us, like an
umbrella, from nuclear attack. Based on this misguided belief,
Australian officials have voiced strong opposition to the proposed UN
treaty, which would require Australia, upon joining, to reject any
role for nuclear weapons in its military doctrines.

But is Australia’s boycott of this process – that 123 other UN member
states have endorsed – compatible with its obligations under
international law? As a state party to the 1968 Non-Proliferation
Treaty (NPT), Australia is legally required to pursue negotiations ‘in
good faith’ on effective measures relating to nuclear disarmament.
Fulfilment of that obligation cannot be delayed indefinitely.

In a Senate committee on 2 March, Labor parliamentarian Lisa Singh
asked the Department of Foreign Affairs and Trade whether ‘failing to
participate in the upcoming negotiations will put us in breach of our
obligations under the [NPT]’. Jane Hardy, the head of the arms control
and counter-proliferation branch, responded: ‘We do not believe so.
That is our assessment.’

But not everyone is convinced. Professor Ramesh Thakur, a disarmament
expert at the Australian National University, told ABC radio on 16
March that Australia is required to be there. ‘Every NPT state party,
including Australia, has a legal obligation to work for complete
nuclear disarmament. Therefore, not to take part is arguably a
violation,’ he said.

John Carlson, who served as director general of the Australian
Safeguards and Non-Proliferation Office for two decades, made the same
argument on The Interpreter last month. ‘Boycotting the forthcoming
negotiations, which are supported by the great majority of NPT
parties, is inconsistent with this obligation,’ he wrote, noting that
the new UN treaty would constitute an ‘effective measure’ for
disarmament.

But Hardy told the Senate committee that Australia’s participation
‘would send the wrong signal’. ‘We would not be able to negotiate in
good faith, so we do not believe – and the government has decided –
that this would be the wrong thing to do,’ she said. However, the
requirement of ‘good faith’ applies not simply to the conduct of
negotiations, but also to the pursuit of negotiations.

Is Australia ‘pursuing’ negotiations in good faith, within the meaning
of article VI of the NPT? The boycott certainly casts serious doubt on
Australia’s commitment to implementing that provision. Refusing to
participate in a process that is widely supported by the NPT
membership and likely to produce the kind of disarmament outcomes
envisaged by the treaty is clearly at odds with its object and
purpose.

The government claims, disingenuously, that the proposed treaty does
not constitute an ‘effective measure’, as nations armed with nuclear
weapons will refuse to join it. In explaining why it voted against the
UN General Assembly resolution last year that established the mandate
for negotiations, Australia said that the treaty will ‘be ineffective
in eliminating nuclear weapons’.

But the treaty need not eliminate nuclear weapons in order to be an
‘effective measure’. Under article VI, it must merely relate to – or
be in the direction of – nuclear disarmament. Whether or not
nuclear-armed states agree to join, it clearly satisfies that
requirement. (Even so, it makes no sense for Australia to prejudge the
effectiveness of the outcome of the negotiations before they even
start.)

Experience with other types of weapons has shown that negotiating a
prohibition facilitates progress towards disarmament. It is difficult
to imagine, for example, that the great gains made towards eliminating
chemical weapons and anti-personnel landmines would have been possible
without a decision by states to impose global prohibitions on those
weapons, which stigmatised their use and stockpiling.

Weapons that are outlawed are increasingly seen as illegitimate,
losing their political status and, along with it, the resources for
their production, modernisation and retention. Arms companies find it
more difficult to obtain contracts and financing for work on illegal
weapons, and such work carries a great reputational risk. It defies
logic that the new treaty on nuclear weapons will have no impact on
disarmament.

But Australia’s argument about the supposed ineffectiveness of this
widely supported treaty is simply a cover for its true – and rarely
stated – reason for opposing the ban: it wants to continue,
indefinitely, claiming ‘protection’ from US nuclear forces. Under the
terms of the NPT, that certainly is not an acceptable legal
justification for boycotting multilateral nuclear disarmament
negotiations.

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