War and Nuclear Weapons: Putting the Cart Before the Horse

Image: Frank Billings Kellogg who received the Nobel Prize for Peace in 1929 for the Kellogg-Briand Pact of 1928. Everett Collection/Shutterstock

This is the text of a presentation made by Associate Professor Joelien Pretorius at a workshop hosted by Toda Peace Institute and Vienna Centre for Disarmament and Non-Proliferation, at VCDNP on Friday 24 June 2022, which included the launch of The Nuclear Ban Treaty: A Transformational Reframing of the Global Nuclear Order (Routledge, 2022)

In my chapter I reflect on the power of the nuclear ban treaty. The inspiration for the chapter came from Oona Hathaway and Scott Shapiro’s 2017 book The Internationalists: How a Radical Plan to Outlaw War Remade the World, in which they show how the 1928 Kellogg-Briand Pact, more officially the General Treaty for Renunciation of War as an Instrument of National Policy, changed the international system. The lessons that I drew from that book is that a ban is not an exercise in abstract morality, but involves questions of power, most importantly how people can amass discursive power to change the rules and operation of the international system to the extent that wars of aggression became “presumed against”. By “presumed against” I do not mean that war will never happen again, but that its illegality creates disincentives at the individual, organisational, state and international level to the extent that war becomes an aberration, rather than normal practice as it was prior to 1928. Moreover, the disincentives to resort to war is reinforced by incentives to resolve disputes peacefully and the machinery for peace is built at all these levels.

My chapter thus explores how the Ban Treaty works to lead actors to “presume against” nuclear weapons practices, like acquiring, developing, storing, using and threatening to use them.  I acknowledge that the nuclear ban does not have the nuclear armed states or most of their allies on board, but I still outline how the ban could be another step towards enduring change based on the discursive power of the humanitarian initiative and the practical implications of outlawing nuclear weapons practices in all the states that have joined the treaty. The power of the ban is more than the sum of its members’ adherence, though, because it has anticipatory customary international law status – it fits into a system of established international law that states outside the TPNW ascribe to. It is a treaty around which the political work necessary to achieve a world without nuclear weapons is being done. The political work I see is creating disincentive for states, individuals and organisations to engage in nuclear practices, while building an incentive architecture of mutual assurance for denuclearization and nuclear abstinence.

Since the Russian invasion of Ukraine I have participated in several discussions on how the war will impact on the nuclear order and I always remark that we are putting the cart before the horse – the question should really be how weaknesses, loopholes, lack of implementation, and the nuclear armed states’ hubris after the indefinite extension of the NPT enabled the Russian invasion of Ukraine and other wars of aggression, including e.g. the 2003 US invasion of Iraq, the 2006 Israeli invasion of Lebanon and wars still to come.  For this purpose, it is useful to look at the interplay of the two bans – the ban on war as an instrument of national policy and the ban on nuclear weapons.

The psychological shift that occurred in humanity’s thinking about wars of aggression that the Kellogg-Briand Pact codifies in 1928, and which gets embedded in the UN Charter in 1945, is overshadowed and usurped by the nuclear peace fallacy in the aftermath of the atomic bombing of Japan.  From Bernard Brodie’s admonition that in the nuclear era the chief purpose of the US military establishment is not to win wars but to avert them, is born the idea that nuclear weapons have military utility by deterring wars and from that is born the idea that nuclear weapons have political utility by keeping peace and maintaining international stability. Whereas Hathaway and Shapiro attribute the decline in war since 1945 to outlawing war as national policy, Gaddis and Walt attribute it to nuclear stand-off. Nuclear weapons in the hands of a responsible few, essentially become framed as the keepers of peace. So, a major objection to the TPNW or nuclear abolition in general is that conventional war will become more probable when nuclear weapons are banned. This is a fallacy that the nuclear armed states’ wars of aggression expose:  Wars declined since 1945 not because of nuclear weapons, but despite of them. The near universal condemnation of the US in 2003, Israel in 2006 and Russia today is evidence of humanity’s revulsion against war as practice.

Nuclear arms control architecture so painstakingly built since the 1960s and a great deal of luck have so far spared the planet from Armageddon. But since 1995, arms control has systematically been dismantled – the Anti-Ballistic Missile Treaty, the Open Skies Treaty and the Intermediate-range Nuclear Forces Treaty (INF). Nuclear weapons and delivery systems are modernized and made more ‘useable’, and the UN’s collective security is exchanged for unilateral action. Why are we surprised that war results when states tear up treaties that build the mutual assurance on which peace relies? Because we think nuclear weapons will keep the peace?

The Ukraine War is one, but not the only illustration, of how nuclear weapons work against peace and security. Not only has it rendered security assurances provided to Ukraine in 1994 toothless, but nuclear weapons embolden actors by reducing their perceived risk on both sides – Russia calculates that Ukraine will not resist invasion and NATO will not intervene, because of its nuclear threats; the US calculates that it is possible to bog Russia down in Ukraine by providing increasingly lethal weapons with the endgame of regime change in that state, because NATO’s nuclear deterrent will keep Russia from retaliation – never mind the cost to Ukrainians of these gambles. In the meanwhile, the US and China engage in similar calculations in terms of Taiwan, laying the tripwires for World War III. So nuclear weapons provide incentives for aggression because they reduce the nuclear weapon states’ perceived risk in undertaking conventional war, instead of incentivizing the hard work of building peace through diplomacy and mutual assurance to prevent war.  

What is to be done? In my chapter I make the argument that the NPT works against the TPNW’s customary law status, because it provides a legal foothold for nuclear weapon states to hang on to these weapons and since 1995 to do so indefinitely. It also provides an institution cleverly used by nuclear weapon states to proffer the nuclear peace fallacy as justification for nuclear weapons. Although nuclear weapon states regularly make disarmament promises in the NPT forum, their perception of a net security benefit from having nuclear weapons trumps their commitment to their own disarmament under the NPT. 

There is value in thinking outside the NPT box for TPNW states. In the immediate future, I advocate that they walk out of the NPT Review Conference later this year in protest against the ways in which Article 6 has been undermined and nuclear weapons have become front and centre of the nuclear weapon states’ military policies and spending again. In the long run I recommend that they withdraw collectively from the NPT. As symbolic acts of resistance, this will provide powerful pointers to the TPNW as an alternative instrument of nuclear governance: An instrument that embodies a psychological shift that nuclear weapons are inhumane weapons of aggression, which is itself an extension of the psychological shift against war and towards the peaceful resolution of disputes.

Joelien Pretorius is an associate professor in the Department of Political Studies at the University of the Western Cape in South Africa where she teaches International Relations and Security Studies. She holds a PhD from Cambridge University in the United Kingdom. She was a research fellow at the Archbishop Desmond Tutu Centre for War and Peace Studies at Liverpool Hope University and is a member of the South African branch of the Pugwash Conferences on Science and World Affairs.