Dynamics of Reciprocity in Disarmament Law: A Clinical Appraisal of the 11th NPT RevCon Failure

[Shun Oshita is a Lecturer at the Hiroshima Peace Institute, Hiroshima City University, specializing in international law and disarmament]

Although many predicted it, there is a lingering sense of disappointment or even strong criticism over the failure to adopt a final document at the 11th Review Conference of the Parties (RevCon) to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Vietnamese Ambassador Do Hung Viet, the President of this RevCon, sought to salvage the conference through a kind of reciprocity, in which all parties lower their ambitions and share the pain of concessions to reach an agreement in the spirit of compromise. In other words, his aim was to make everyone “equally unhappy,” a strategy Henry Kissinger used to bring ceasefire negotiations to a conclusion during the Fourth Middle East War in 1974.

This immediately raises a question: why did this approach fail? As Ambassador Viet reflected after the RevCon, compromise was “too often perceived as weakness.” In other words, because nuclear issues are often tied to vital national security, it was difficult for sovereign states to accept an “unhappy” text to ensure the success of this single conference, at the cost of compromising their national security policies in today’s highly confrontational security environment.

This piece explores the RevCon’s failure through the lens of reciprocity. By contrasting its role as a legal safety net with its limits as a political negotiation strategy, it exposes the structural constraints behind the deadlock and why we need a “clinical”, not mere critical, perspective that avoids a nihilistic self-neglect or hyper-reactive criticism and diagnoses the root causes of these symptoms to prescribe constructive solutions.

Negative Reciprocity as Safety Net

While reciprocity appears as a negotiation strategy at the 11th RevCon, it serves as a safety net under disarmament law in general. This is called “negative reciprocity” (Simma), which is closely related to the concept of an integral obligation.

According to the UN’s International Law Commission (ILC), an integral obligation is a type of erga omnes obligation, which originates from the discussions on interdependent obligations introduced by Gerald Fitzmaurice during the drafting process of the Vienna Convention on the Law of Treaties (VCLT), which was subsequently inherited by the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).

The affectedness of breach can explain this terminology. If you focus on compliance, it can be called an interdependent obligation, as one state’s compliance depends on the compliance of all other state parties. On the other hand, if you focus on measures against rule-breaking conduct, its breach integrally affects all other obligees and renders them “injured states” entitled to request not only termination of illegal conduct but also reparation such as restitution of status quo (ARSIWA Art. 42(b)(ii)). When the breach is material, it radically changes the position of all other parties and gives them the right to suspend the operation of the treaty, in whole or in part, with respect to themselves (VCLT Art. 60(2)(c)).

The NPT serves as a bit complicated but good example of integral obligations. If nuclear weapon states (NWSs) transfer nuclear weapons to any recipients or non-nuclear weapon states (NNWSs) commit clandestine development of nuclear weapons, such breaches of obligations under Arts. 1 and 2 radically change the position of every other state party within the global and regional security environments, rendering them all “injured states” entitled to demand not only the termination of NNWS’s nuclear weapons development but also the restitution, such as the retrieval of the transferred nuclear weapons. If the breach is material, all other NPT members may suspend the treaty’s operation. As a last resort, they can withdraw from the NPT after deciding that extraordinary events have jeopardized their supreme interests in accordance with Art. 10. Underpinning these mechanisms is a structure referred to as “global reciprocity” (Sicilianos).

Heavy Price of Compromise

While the deterrent effect of this negative reciprocity serves as a legal principle in implementing non-proliferation obligations, RevCons must review the operation of the NPT as a whole. It covers not only the grand bargain, whose three pillars are non-proliferation, peaceful uses of nuclear energy, and “good faith” negotiations on nuclear disarmament, but also other issues such as the non-first use of nuclear weapons and nuclear sharing.

Unlike the negative reciprocity of the non-proliferation obligation, the negotiation process for a final document follows another type of reciprocity not as a legal principle but as a political principle to achieve concessions or deals which provide “actual equivalence of the mutual advantages” (Simma). This is exactly where Ambassador Viet’s strategy to make everyone “equally unhappy” was intended to operate, asking all parties to share the same burden of compromise to save the NPT regime.

However, to understand why this political reciprocity finally failed, we need to recognize the NPT’s core legal interest. Within the NPT community, the temporary status quo must be protected as the societal legal interest, namely, the provisional state of affairs where only NWSs are allowed to possess nuclear weapons. When NNWSs relinquish their sovereign right to nuclear arms, they accept unequal status and verification burdens in exchange for greater benefits: the guaranteed right to peaceful nuclear energy, NWSs’ commitment to nuclear disarmament negotiation in good faith, and a safer security environment where their neighbors also forego nuclear weapons. As RevCons must negotiate various issues arising from this delicate status quo, many conference agenda items become closely tied to the vital national security of every member state.

Governments cannot lightly accept an “equally unhappy” final document, as it may risk their vital security, which must be protected not only by the demands of state sovereignty but also by the practical realities of national governance. Risking short-term national security in pursuit of an uncertain long-term interest can collide with the mission of governments, as they are entrusted with the “public trust” by their peoples to ensure the national benefit in negotiations. Then, leaders and diplomats hesitate to swallow an “unhappy” security compromise without assurances that these sacrifices will genuinely yield greater national benefits.

Failure vs “Equally Unhappy” Consensus

Then, how did the Final Draft make everyone unhappy? As Ambassador Viet said at the press briefing just after the conclusion of the RevCon, the paragraph on the Iranian nuclear issue is important but not the primary reason for the breakdown, and there were still many other unresolved points.

There are significant textual transitions from the Zero Draft to the Final Draft. For instance: the initial “deep regret” for the lack of fulfillment of Art. 6 by NWSs was softened to merely regretting a “lack of recent progress”; the request for NWSs to declare No First Use (NFU) policies was deleted; the initial naming and shaming against countries like the US, Russia, and the DPRK was finally avoided except for Iran; criticism against nuclear-sharing arrangements was omitted finally. From these transitions, we can easily imagine that many member states were in a difficult position.

Within the complex web of NPT politics and a security environment full of mistrust, while the Zero Draft crossed the red lines of a specific set of nations, the diluted Final Draft proved intolerable to different cross-sections of states. Therefore, under these circumstances, it was actually better for the RevCon to swallow the bitter pill of the third consecutive failure to adopt a final document.

We Need “Clinical” Measures

Then, what is the viable path to achieve nuclear disarmament or “a world without nuclear weapons” as the destination of the NPT? How should they “bring to a conclusion negotiations leading to nuclear disarmament” as the ICJ held at its Advisory Opinion on “Legality of the Threat or Use of Nuclear Weapons”?

As the former Director General of the International Atomic Energy Agency, Mohamed ElBaradei, observed, what NWSs do is “to dangle a cigarette from their mouth and tell everybody else not to smoke.” Although his intention may be to expose the hypocrisy of NWSs, we must recognize that this is an undeniable aspect of human nature. Some people can live without smoking, and others need cigarettes to cope. However, as Global Hibakushas who experienced the absolute extremes of human tragedy attest, it is completely nonsensical to leave nuclear weapons issues to the sovereign freedom of individual states. If we do not have items like nicotine patches so far, we should not only patiently persuade the peoples of NWSs and their allies to stop depending on nuclear weapons but also try to remove stressors that make these peoples do so: the highly confrontational security environment. This is the “clinical” approach this article advocates.

Then, can the Treaty on the Prohibition of Nuclear Weapons (TPNW) provide effective therapy to “bring to a conclusion negotiations leading to nuclear disarmament” under Art. 6 of the NPT? While some scholars, such as Stuart Maslen, argue that the TPNW complements the NPT, the TPNW aims to replace the NPT’s status quo with a new one: “a world without nuclear weapons.” When the NPT was adopted, the status quo under general international law—any state can legally possess nuclear weapons—was replaced by a new one and the factual status quo at the time of the NPT’s conclusion was elevated to a temporary but legal one within the NPT community. Even this replacement was extremely difficult, but it was achieved because the NPT’s new legal status quo offered not the best, but a more secure world for all, based on global reciprocity.

Conversely, TPNW faces far more difficult challenges, as it seeks to change both the legal and factual status quo simultaneously. In addition, some TPNW supporters, such as the International Campaign to Abolish Nuclear Weapons (ICAN), seem to deny the interdependent character of nuclear disarmament and try to reframe it as an immediate obligation erga omnes, which is akin to the prohibition of genocide. Thus, from the perspective of disarmament law, TPNW’s ambition is to shift away from the traditional paradigm of step-by-step nuclear disarmament.

Regardless of whether the TPNW accepts or rejects this paradigm, its effectiveness hinges on its clinical pathway. If the TPNW is confined to the new paradigm of “shock therapy”, its outcome is highly likely to be an all-or-nothing scenario. Even within the traditional paradigm of “gradual reduction therapy,” the fact that TPNW state parties agree on the total elimination of nuclear weapons helps reduce the complications of future disarmament and demonstrates that, in this sense, the TPNW can be part of the social process toward “a world without nuclear weapons.”

Conclusion

We have reached the final question of this piece: Do we need to pursue nuclear disarmament within the traditional paradigm, or in a new one? Which path offers the shorter, more viable route to guarantee that the extreme tragedies of global Hibakushas would never be repeated?

The answer to the question is clearly beyond the scope of this piece, but we know that nuclear disarmament requires clinical efforts not only to improve the social health of individual nations but also to enhance that of the international community as a whole. This task may go beyond the scope of disarmament law itself. Viewed through the lens of Vaughan Lowe’s insights into the limits of international law and the interdisciplinary framework of therapeutic jurisprudence, it becomes evident that nuclear disarmament requires interdisciplinary cooperation among scholars and practitioners across law, political science, security studies, sociology, and psychology. Finding a solution to change the status quo again through global reciprocity and, perhaps, cultivating an opinio juris of the peoples for a “world without nuclear weapons” is the existential challenge we have faced and continue to face after the 11th NPT RevCon.

Photo attribution: by Kilian Karger on Unsplash