Defense Alliance with US not Legal Bar to Ratifying New Treaty
(Cambridge, MA, December 14, 2018) – Australia’s alliance with the United States need not stand in the way of Australia joining the 2017 treaty banning nuclear weapons, Harvard Law School’s International Human Rights Clinic said in a report released today.
The Treaty on the Prohibition of Nuclear Weapons (TPNW) would require Australia to end its reliance on US nuclear arms for defense. But it would not undermine the countries’ broader collective security agreement established under the 1951 ANZUS Treaty.
“Australia has long claimed to support nuclear disarmament,” said Bonnie Docherty, lead author of the report and the Clinic’s associate director of armed conflict and civilian protection. “Joining the ban treaty would advance that goal without creating insurmountable legal obstacles to ongoing military relations with the US.”
The 13-page report “Australia and the Treaty on the Prohibition of Nuclear Weapons” explains why Australia can renounce its nuclear defense arrangement with the US (under the so-called “nuclear umbrella”) while maintaining military ties to its ally. The report also shows the compatibility of the treaty with Australia’s disarmament commitments under other treaties and policies.
The Labor Party is expected to discuss the TPNW at its national conference from December 16 to 18, 2018. The conference will provide a forum for Labor to develop a new party platform. In its last platform, adopted in 2015, the Labor Party called for negotiations of a treaty banning nuclear weapons.
“Labor should continue to back a nuclear weapons ban and urge Australia to sign and ratify this landmark treaty,” Docherty said.
The TPNW was adopted at the UN by 122 countries on July 7, 2018. The United States, Australia, and most other nuclear-armed and nuclear umbrella states boycotted the negotiations.
Nevertheless, many Australian parliamentarians and the larger public have expressed support for the ban treaty. In 2017, the Senate passed a Labor-initiated motion urging the government to participate in the negotiations. Since then, two-thirds of the current Shadow Ministry have pledged to work toward the treaty’s signature and ratification. A survey of Australians, released last month, found that almost 80 percent of the public supported joining the treaty.
The TPNW requires its states parties to renounce their nuclear umbrella arrangements. Such arrangements would violate the treaty’s prohibition on encouraging other countries to possess nuclear weapons.
But as the Clinic’s new report explains, the ANZUS Treaty makes no reference to nuclear weapons. Australia’s public claims to protection under the nuclear umbrella are based on policy statements that began in 1994.
An affirmative rejection of the nuclear umbrella would not breach Australia’s ANZUS Treaty commitment “to act to meet the common danger” in the case of an attack on an alliance member or in the Pacific. It would also allow Australia to comply with the relevant TPNW prohibition. While the US could object to Australia’s new position and use nuclear weapons in Australia’s defense, the TPNW does not hold states parties responsible for their allies’ choice of weapons.
The TPNW allows parties to participate in military alliances and joint operations with nuclear armed states. If Australia ratified the treaty, it could not assist the US with certain nuclear-weapon-related activities, such as the planning of strikes with nuclear weapons. But it could continue to provide intelligence for counter-terrorism efforts or engage in non-nuclear military operations, such as those of the US-led coalition in Afghanistan.
According to the new report, the TPNW is consistent with some of Australia’s other legal and policy commitments. The TPNW helps states parties, such as Australia, meet their obligation under the Nuclear Non-Proliferation Treaty (NPT) to work toward nuclear disarmament, including in the form of a treaty. The TPNW strengthens the NPT’s safeguard measures to ensure countries do not develop nuclear weapons.
“By signing and ratifying the nuclear ban treaty, Australia would join with its regional neighbors in the Asia-Pacific and become a disarmament leader among nuclear umbrella states,” Docherty said.
Clinical students Molly Brown, JD ’19, Samantha Fry, JD ’20, and Thejasa Jayachandran, JD ’20, worked under Docherty’s supervision to help write this report.