The Draft Convention on the Prohibition of Nuclear Weapons & the Evolving International Nuclear Law

The international legal framework that deals with nuclear weapons may collectively be styled as the international nuclear law; and this framework obviously, like other areas of international law, is not static. One aspect that calls for a comment is that the international nuclear law falls in a shared domain of both the jus ad bellum (law of war) and the jus in bello (law in war) insomuch as it deals with both the potential of the use or the threat to and, use the nuclear weapons, and to its actual use during the armed conflicts. In this context, the draft Convention on the Prohibition of Nuclear Weapons (hereinafter draft CPNW) warrants appreciation and examination. This write-up serves a dual purpose: first, it briefly outlines the evolution of the international nuclear law since 1945; and second, it presents the characteristic features of the draft CPNW.

Evolution of the International Nuclear Law

The evolution of the international nuclear law is related to the discovery of atomic energy. Significant events leading to the evolution of the law may be outlined as under:

1. The matter of elimination of weapons of mass destruction (WMDs) has been on the agenda of the united Nations General Assembly (UNGA) since 1946, when through its first resolution, the UNGA established a Commission to deal with the problems related to the discovery of atomic energy on the recommendation of the First Committee of the UN that deals with the Disarmament and the International Security (DISEC). The resolution provided that the Commission so established should develop proposals for “the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.” Based on this soft international law of the UNGA resolution, the UN took upon itself the task of eliminating atomic weapons.
2. Baruch Plan of the US is considered the second most important event in the development of the law. It may be noted that after the Second World War, the debate about the peaceful and the non-peaceful uses of the atomic energy ensued, resulting into two schools of thought in the US. The first was led by the Secretary of War Henry Stimson who was of the view that the non-peaceful use of atomic energy was a scientific discovery and could not be monopolized forever by the US. The proponent of the opposing school of thought was the Secretary of State James Byrnes who advocated monopoly of the US on the non-peaceful use of the atomic energy. The two sides tried to influence the policy of the then President of the US Harry S. Truman. Ultimately, the non-monopolist view prevailed and the US and the Soviets developed understanding to hand over the control of the atomic energy to the United Nations Atomic Energy Commission (UNAEC). Based on this understanding, the Baruch Plan was introduced in 1946 by the US to the UNAEC. The Baruch Plan was presented by Bernard Baruch wherein he had propagated the idea that the US should abandon its monopoly on atomic weapons and that the atomic energy could not be controlled through inspections regime alone, and therefore, all the fissile material should be under the control of an international organization. The Baruch Plan also recommended the elimination of atomic weapons from the national armaments. The Plan, however, could not meet its objectives.
3. Series of bilateral and plurilateral treaties dealing with different aspects of material control, proliferation and testing of the nuclear weapons were introduced. In 1963, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, also known as the Partial Test Ban Treaty (PTBT), was introduced. The PTBT was then succeeded by Threshold Test Ban Treaty (TTBT) in 1974, and, finally, it was succeeded by the Comprehensive Test Ban Treaty (CTBT) in 1996. The most important treaty, however, was the Treaty on the Non- Proliferation of the Nuclear Weapons commonly known as the Non Proliferation Treaty (NPT), which was introduced in 1968. The focus of the NPT was to control the proliferation of the nuclear weapons and to provide for ways to encourage regulated supply of the nuclear energy for peaceful purposes. The NPT got almost universal acceptance as over 191 countries, including the North Korea – that signed it in 1985 but announced its withdrawal in 2003 – adhered to it. Alongside the treaties, some arrangements were also reached amongst the states that resulted in establishment of the Nuclear Suppliers Group (NSG) and the Missile Technology Control Regime (MTCR).
4. Finally, the International Court of Justice (ICJ) was approached by interested groups to obtain orders prohibiting nuclear weapons. Two efforts were made: first was the ICJ’s Advisory Opinion about the legality of the nuclear weapons (1996), which proved counterproductive in the sense that the ICJ held that ‘there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such’. It was also held that the use of the nuclear weapons would be subject to the principles of the international humanitarian law. It went on to keep the question of use of the nuclear weapons in self-defence ‘open’. The second attempt was made in the Marshall Islands Case (2016) wherein the declared and undeclared nuclear-weapons states were required to negotiate in terms of Article VI of the NPT, in good faith, a nuclear weapons banning treaty (resulting in cessation of nuclear arms race).

The Draft Convention on the Prohibition of Nuclear Weapons (CPNW)

The draft CPNW was introduced on 22 May 2017 in Geneva. It is supported by 130 non-nuclear states. The US and Russia have expressly opposed it whereas India and Pakistan have abstained to take any position. With this diplomatic and political calculus in view, now let us examine its legal content. It comprises 21 Articles and one Annex. The draft CPNW has the following characteristic features:

1. General Obligations: Article 1 spells out General Obligations for the states that would be parties to it. It obliges the states not to develop, transfer, receive, use or carry out nuclear weapon test explosion and to assist or seek assistance form anyone in any activity prohibited under the draft CPNW. Article 1(2) obliges the states to prohibit any stationing, installation, deployment and nuclear testing within its jurisdiction or ‘control’. The obligation of prohibiting any activity in a place under ‘control’ of a state must be considered minutely by the diplomatic corps of Pakistan, as it widens the scope of the draft CPNW loosely.

2. Declarations: Article 2 calls for declarations from states regarding nuclear weapons manufactured and possessed or acquired by them after 5 December 2001.

3. Safeguards: Article 3 requires the states to abide by safeguards detailed in Annex to the draft CPNW in order to prevent diversion of nuclear energy from peaceful means. (Article 3 links the draft CPNW to Article III of the NPT, which deals with the safeguards regime).

4. Post-elimination Steps: Article 4 obliges the state parties who have eliminated the nuclear weapons to subject themselves to verification process by cooperating with the International Atomic Energy Agency (IAEA). The parties have been encouraged to enter into agreement with IAEA for the verification. This provision of the draft CPNW does not bind the state parties to eliminate the nuclear weapons; without obliging the state parties to eliminate nuclear weapons, how could they be obliged to subject themselves to verification processes is, at best, not clear.

5. Nationalization of the CPNW: Article 7 obliges the states to incorporate through constitutional means the necessary measures to implement the Convention. For Pakistan, which is a dualist state, the nationalization of the CPNW will be necessary to see actual implementation of the Convention, if and when, it chooses to consider the Convention.

6. Settlement of Disputes: The settlement of disputes, relating to the interpretation or application of the Convention, has been proposed to be through peaceful means including recourse to the ICJ — of course, subject to mutual consent.

Banning Nuclear Weapons

On the balance of probabilities, the draft CPNW is not likely to meet the growing demand for binding legal instrument dealing with prohibition of nuclear weapons. The asymmetrical and discriminatory approach of the powerful in the international community towards prohibiting nuclear weapons has caused systemic problems which may not be cured by non-binding and prospective treaties. The point of departure for any sustainable binding legal solution has to address the available nuclear armaments before eliciting further legal commitments.