Treaty on the Prohibition of Nuclear Weapons: What and Why

Activists campaigning for outlawing nuclear weapons Activists campaigning for outlawing nuclear weapons © International Campaign to Abolish Nuclear Weapons (ICAN).

a personal reflection by Artem Churliaev

In July 2017, a diplomatic conference adopted the long-awaited nuclear ban treaty, but its future and potential impacts remain to be seen.

On July 7, 2017, a diplomatic conference in New-York adopted the Treaty on the Prohibition of Nuclear Weapons by 122 votes, which represents about two-thirds of the UN member countries. This conference was preceded by a heated debate on the provisions thereof and the necessity of the treaty in general. In the end, the nuclear-weapon states along with most NATO members refused to take part in the negotiations. This article aims to provide background on the current nonproliferation regime, outline provisions of the new treaty and, finally, highlight its most problematic aspects in hopes of generating discussion on the topics.

 

The pillars of nonproliferation

The possibility of nuclear weapons proliferation  all over the world was of concern to leading world powers. Efforts to put an end to a nuclear arms race go back as early as 1946 and the so-called Baruch Plan, which was ultimately rejected due to the beginning of the Cold War between the United States of America and the Soviet Union. Both countries were developing their own nuclear arsenals. Later, the United Kingdom, France and China also joined the “nuclear club”. The understanding that other nations were willing to acquire nuclear weapons and that further proliferation would be detrimental to international security, pushed the two confronting blocs to seek compromise and negotiations on a treaty designed to prevent other nations from developing nuclear weapons. The negotiations culminated in signing the Nonproliferation Treaty (NPT) of 1968, banning nuclear weapons for all countries but those which had tested a nuclear explosive device before 1967. This meant, effectively, that the United States, Soviet Union, United Kingdom, France, and China were the only countries allowed to have nuclear weapons. The rest of the world was supposed to renounce the pursuit thereof and join the treaty in exchange for assistance by the remaining nuclear states in the field of atomic energy. This assistance, as well as safeguards of implementing the treaty, was to be borne by the International Atomic Energy Agency. On their part, the nuclear weapon states undertook obligations to seek a nuclear free world. Till now, this treaty has been a cornerstone of the nonproliferation regime. On the universal level, it was corroborated by test ban treaties – one partial in 1963 and the comprehensive test ban treaty in 1996.  

On regional levels, the nonproliferation efforts were even more successful. In 1960, Antarctica was proclaimed a nuclear weapon-free zone, and later treaties banned nuclear weapons for outer space and seabed. However, it was the Tlatelolco treaty signed in 1967 (a year before the NPT), which was a real breakthrough in nonproliferation. The treaty provided for the creation of a nuclear weapon-free zone in Latin America; the parties to the treaty were not allowed to test, use, produce or acquire nuclear weapons and, more importantly, nuclear-weapon states gave negative assurances not to use nuclear weapons against the states-parties to the Tlatelolco agreement. The author of the idea, Alfonso García Robles, received a Nobel prize and ultimately all 33 Latin American and Caribbean countries joined the treaty. Similar zones were created in South-East Asia, South Pacific, Central Asia, and Africa. In addition, Mongolia proclaimed its territory a nuclear weapon-free zone, while others, like Austria, banned nuclear weapons on their territory by internal legislation.

So, the nonproliferation regime has been broken into two levels: universal, with the NPT in the centre, and regional, based on regional treaties whose nuclear-weapon free status was guaranteed by the nuclear-weapon states.

 

Challenges to nonproliferation and the way to the new treaty

The created regime was not flawless, however, and the treaties did not manage to ensure absolute nonproliferation. Such countries as India, Pakistan, Israel and North Korea were able to produce their own nuclear weapons and are still considered to be de-facto nuclear-weapon states, as opposed to the official nuclear-weapon states envisaged by the NPT. Other countries like South Africa, Brazil and Libya used to have military programs but, in the end, decided to shut them down. Ultimately, some countries were clearly not happy about the decisions made in the 1960s on who can possess nuclear weapons and who cannot. On the other hand, civil society was gaining momentum after the end of the Cold War. Through decades of confrontation people grew accustomed to living in fear of an imminent nuclear apocalypse, and developing science could vividly describe the nuclear winter, nuclear night and other horrible repercussions of a nuclear war. Memories of the hibakusha, survivors of atomic bombings of Hiroshima and Nagasaki, also provided useful data on an eventual post-nuclear future. Thus, civil society activists, NGOs and general public, especially in the West, launched a campaign for a total ban on nuclear weapons.

One of the early results of this campaign was quite possibly a Nuclear Weapons case before the UN Court of Justice. The General Assembly asked the Court to assess the legality of an eventual use of nuclear weapons against the background of existing legal norms. Most notably, Article 51 of Additional Protocol I to the Geneva Conventions explicitly prohibits indiscriminate attacks, (i.e. attacks not directed at a specific military objective). France and the United Kingdom, upon ratification of the Protocol, made a reservation saying that the Protocol “neither regulated nor prohibited the use of nuclear weapons”. Russia and China were ambiguous in this regard, while other nuclear-weapon states have not ratified the Protocol. The Court, after having analyzed the current legal framework, came to the conclusion that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict", but could not rule definitely on a situation of "an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. This decision was taken in a split vote 7\7 with the casting vote of the President and, till now, has remained one of the most controversial decisions of the Court. Many lawyers and civil society organizations have publicly disagreed with the reasoning of the court.

After the advisory opinion was released, the push for a nuclear ban treaty grew even stronger, but nuclear-weapon states refused to engage in any discussions in this regard. Finally, the treaty was adopted without them.

 

Treaty on the Prohibition of Nuclear Weapons: key provisions

The treaty adopted in July 2017 reflects the basic clauses of the NPT and regional nonproliferation treaties. Thus, it prohibits the state parties to develop, transfer or receive nuclear weapons; use them or allow any stationing, installation or deployment thereof in its territory; or assist or seek assistance in any activity prohibited by the treaty. The regime of safeguards, according to the treaty, shall be technically the same as that under the NPT, under control of the IAEA. Besides, the treaty obliges the state parties to create a national system of implementation, to assist victims of the use or testing of nuclear weapons, and encourages the states to facilitate its universal ratification. Also, it fixes meetings of states’ parties and contains some provisions for the settlement of disputes.

 

Controversies over the new treaty

This brief analysis of the treaty’s provisions shows that the new treaty is not as ambitious as its proponents initially wanted it to be. Basically, the states do not take on any additional obligations other than  those borne under the NPT and regional treaties on nuclear weapon-free zones. Moreover, about 80% of the countries that voted for the new treaty are already state parties to regional regimes, and already bear much more stringent obligations regarding nuclear weapons. It remains to be seen which states will actually sign and ratify the treaty, but even if all the countries that voted for the treaty at the conference would join it, its added value seems not that remarkable. The remaining 20% of countries, which are not parties to any regional regime, are parties to the NPT and bear virtually the same obligations under that universal legal instrument. Neither does the new treaty provide for creation of a global nuclear weapon free zone, since it is aimed at complete elimination of nuclear arsenals, and mentioning any negative assurances of nuclear-armed states in the treaty’s text would contradict this goal. The only difference may be the fact that the new treaty explicitly prohibits storage of nuclear weapons in the territory of a member state, while such practice has become somewhat acceptable under the NPT (consider Italy or the Netherlands having American nuclear weapons on their territories), although recently sparking a series of accusations between Russia and the US.

Advocates of the treaty have criticized the NPT for being ineffective, since, firstly, it has not completely prevented further proliferation and, secondly, has not encouraged the nuclear-weapon states to reduce their arsenals. Their opponents usually answered that the nuclear arsenals of the US and Russia, the world nuclear superpowers whose stockpiles far exceed those of the rest of the world, have been reduced by about 80% since 1967 and negotiations are still under way. As for nonproliferation, there is no sign that the new treaty will deal with this problem any better, especially as it will rely on the old system of safeguards.

Of course, according to the treaty, state parties may further strengthen its provisions and safeguards, adopt protocols thereto etc.. In its current form, however, the instrument does not seem adequately drafted to achieve its high goal of a nuclear weapon-free world. In order to make a political move, the conference adopted a compromise text obliging nothing (even the settlement of disputes section is drafted in quite a soft manner and does not explicitly provide for a referral to some arbitration or judicial body) and aiming only at demonstrating political will. The authors of the treaty themselves admitted that their main goal was to demonstrate the intentions of most states of the world and, thus, exercise moral pressure on the nuclear-weapon states. Even the aspect of political will seems problematic here, however, as all the states that voted in favour of the new treaty already bear virtually the same obligations as the treaty provides for, and whether this vote may be considered as a valid demonstration of opinio iuris may be another subject of debate (see “Baxter paradox”).

 

What future?

The fact that even some parties (e.g. like Australia) to regional nonproliferation regimes did not take part in the conference is no surprise considering the number of ambiguities in the new treaty as well as fears that it may jeopardize the NPT rather than strengthen it.  This treaty will be open for signing in September and the actual list of its signatories is not yet clear. What one can be sure about is that the debate on the treaty will be extremely interesting.  

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