The Treaty on the
of Nuclear Weapons
On January 22, the Treaty on the Prohibition of Nuclear Weapons (TPNW), the first nuclear disarmament instrument in more than two decades, entered into force. The treaty is now a part of international law and is a legally binding instrument aimed at total elimination of nuclear weapons, under the aegis of the United Nations. However, the treaty is a “paper tiger” because none of the recognised nuclear-armed states has signed it. Here, the significance of the law and reasons behind criticism are explained.
Nuclear weapons were first used in 1945 with catastrophic outcomes. Since then, they have remained a major threat to humanity. Civil society has been campaigning against them ever since but progress has been slow.
The initiative to negotiate a “legally binding instrument” to prohibit nuclear weapons is the result of a years-long process that grew out of a renewed recognition of the catastrophic humanitarian consequences of nuclear weapons use, the rising risk of accidental or intentional nuclear use, and a growing sense of frustration that key nuclear disarmament commitments made by the nuclear-weapon states were not being fulfilled.
The 2010 NPT Review Conference unanimously “express[ed] its deep concern at the continued risk for humanity represented by the possibility that these weapons could be used and the catastrophic humanitarian consequences that would result from the use of nuclear weapons.”
These concerns motivated a group of states, including Norway, Mexico and Austria, to organize a series of three conferences in 2013 and 2014 on the humanitarian consequences of the use of nuclear weapons.
Following the conclusion of the 2015 NPT Review Conference, these and other states agreed to set up an open-ended working group in 2016 on advancing multilateral disarmament negotiations. The working group led to the formulation of a resolution in the UN General Assembly to start negotiations in 2017 on a treaty prohibiting nuclear weapons. The resolution passed the UN General Assembly First Committee by a vote of 123-38 with 16 abstentions in October 2016, and was subsequently adopted by the General Assembly as a whole.
The first negotiating session was held at the UN in New York on March 27-31, 2017, with some 130 governments, and dozens of civil society organizations, participating. The president of the negotiations, Ambassador Elayne Whyte Gomez, compiled states’ expressed opinions from the first round of negotiations into a draft convention on the prohibition of nuclear weapons issued on May 22 in Geneva. The second and final round of negotiations took place on June 15-July 7 in New York, with participants adopting the Treaty on the Prohibition of Nuclear Weapons by a vote of 122-1-1; the Netherlands voted against adoption, and Singapore abstained.
Role of ICAN
The International Campaign to Abolish Nuclear Weapons (ICAN) spearheaded the efforts for the signing of a nuke ban treaty. In 2010, ICAN started working with some governments to promote a process at the UN to negotiate a legally binding instrument to ban nuclear weapons.
The ICAN website claims that the treaty fills a “significant gap” in international law. While the NPT seeks to prevents countries from manufacturing nuclear weapons, it doesn’t address the use or possession of such weapons by all parties.
“The nuclear weapon ban treaty is based on the rules and principles of international humanitarian law, which stipulate that the right of parties to an armed conflict, to choose methods and means of warfare is not unlimited, that weapons must be capable of distinguishing between civilians and combatants, and that weapons causing superfluous injury or unnecessary suffering are prohibited,” the ICAN website states.
The United Nations General Assembly in 2017 decided to hold a conference to negotiate a legally binding instrument to end the use of nuclear weapons.
The arduous journey of this treaty, which flat-out bans the use, development and possession of nuclear weapons, required that 50 signatory nations officially ratify it before it could become international law. That finally happened on 24 October 2020, when Honduras became the fiftieth country to do so. And then 90 days had to pass, which occurred on Jan 22 and now nuclear weapons are illegal in the signatory countries. None of the 50 ratifications comes from a country with an actual nuclear arsenal. So, the provisions of the treaty aren’t binding on non-signatories.
The ICAN was awarded, for its efforts, the Nobel Prize for peace in 2017.
The treaty, which has a 24-para preamble, lists includes a comprehensive set of prohibitions on participating in any nuclear weapon activities. These include undertakings not to develop, test, produce, acquire, possess, stockpile, use or threaten to use nuclear weapons. The Treaty also prohibits the deployment of nuclear weapons on national territory and the provision of assistance to any State in the conduct of prohibited activities. States parties will be obliged to prevent and suppress any activity prohibited under the TPNW undertaken by persons or on territory under its jurisdiction or control. The Treaty also obliges States parties to provide adequate assistance to individuals affected by the use or testing of nuclear weapons, as well as to take necessary and appropriate measure of environmental remediation in areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons.
Article 1 of the Treaty on the Prohibition of Nuclear Weapons outlaws a wide range of nuclear weapon-related activities. Countries that have joined it must never develop, test, produce, acquire, stockpile, transfer, use or threaten to use nuclear weapons. They are also forbidden from hosting another country’s nuclear weapons on their territory or assisting or encouraging anyone else to engage in any of these prohibited activities. This article of the treaty draws on elements of the conventions banning chemical and biological weapons, antipersonnel landmines and cluster munitions.
According to Article 5 of the treaty, each state party shall adopt and take all necessary measures to implement its obligations under this treaty, including the imposition of penal sanctions and other activities to support the law.
TPNW makes it obligatory for states to “suppress” any of the prohibited activities on its territory, compensate and provide necessary assistance to persons affected by nuclear testing in any way, and also take remedial action to undo environmental damage in areas under its jurisdiction which have been affected by the use or testing of nuclear weapons.
The law is aimed at motivating the United States, Russia, Britain, France and China – the five nuclear-weapon states officially recognised by the nuclear Non-Proliferation Treaty (NPT) that rejected calls for a comprehensive treaty review in 2010 – to join the new treaty because they believed the NPT could not solve the nuclear crisis and other related problems.
The treaty defines all nuclear weapons as illegal arms, with the ultimate goal being to eliminate all nukes in the world. However, it does not have the right to punish nuclear-armed countries, because they are not willing to sign the treaty.
Since a UN international law needs to be adopted by treaty parties for it to become a domestic law, the TPNW is just an international law outside their territory without any binding effect. Indeed, none of the five UN Security Council (UNSC) permanent members: the US, Russia, China, France and Britain, which are all nuclear-weapon states, supports the treaty.
How are the NPT and TPNW different?
Both are international treaties but they have different objectives. The TPNW aims to create a nuclear weapon-free world but the NPT is aimed at preventing the spread of nuclear weapons and weapon technology, as well as promoting the peaceful use of nuclear energy.
Members of the NPT include nuclear-weapon states as well as countries that do not have nuclear weapons. The treaty entered into force in 1970 and now 191 countries take part, including the world’s two nuclear giants – the US and Russia – which own more than 13,000 nukes or more than 90 percent of the world’s nuclear weapons. Other officially recognised nuclear-weapon states such as China, Britain, and France have joined but North Korea, which is also believed to have nuclear weapons, withdrew in 2003. India, Pakistan, South Sudan and Israel have not joined. The TPNW was initiated and proposed by non-nuclear weapon countries Brazil, Egypt, Ireland, Mexico, New Zealand and South Africa, which formed the New Agenda Coalition (NAC) in 2010.
Stance of Pakistan
Pakistan does not consider itself bound by any of the obligations of the TPNW as it considers that the agreement does not constitute a part of conventional international law. In a statement, the Foreign Office said the treaty was negotiated “outside the established UN disarmament negotiating forums… [n]one of the nuclear-armed states, including Pakistan, took part in the negotiations of the treaty which failed to take on board the legitimate interests of all the stakeholders,” the press release said, adding that many non-nuclear states had also refrained from becoming parties to the pact.
The FO noted that the United Nations General Assembly, at its first special session devoted to nuclear disarmament in 1978, had agreed by consensus that in the adoption of disarmament measures, “the right of each state to security should be kept in mind, and at each stage of the disarmament process, the objective would be undiminished security for all states at the lowest possible level of armaments and military forces”.
“Pakistan believes that this cardinal objective can only be achieved as a cooperative and universally agreed undertaking, through a consensus-based process involving all the relevant stakeholders, which results in equal and undiminished security for all states,” the statement emphasised.
Reactions from the nuclear-armed states
Nuclear-weapon states and many NATO members have opposed the initiative from the beginning. These states contend that the treaty will distract attention from other disarmament and nonproliferation initiatives, such as negotiating a fissile material cutoff treaty (FMCT) or ratifying the CTBT. They have expressed concern that the nuclear prohibition treaty could undermine the NPT and the extensive safeguard provisions included therein by giving states the option to “forum shop,” or choose between the two treaties.
North Atlantic Treaty Organisation (NATO) countries, which, in 2016, expressed commitment to nuclear deterrence, haven’t signed the treaty either.
The United States, France and the United Kingdom in 2018 led a group of 40 nations in protest against the UN talks when the treaty was being discussed. The talks were supported by more than 120 countries, and were led by Austria, Brazil, Ireland, Mexico, South Africa and Sweden.
Countries believe the nuke ban treaty undermines the importance of the non-proliferation treaty.
The United States had written to treaty signatories saying the Trump administration believes they made “a strategic error” and urging them to rescind their ratification. The US letter said the five original nuclear powers – the US, Russia, China, Britain and France – and America’s Nato allies “stand unified in our opposition to the potential repercussions” of the treaty.
It says the Treaty on the Prohibition of Nuclear Weapons, known as the TPNW, “turns back the clock on verification and disarmament and is dangerous” to the half-century-old Nuclear Nonproliferation Treaty, considered the cornerstone of global non-proliferation efforts.
“The TPNW is and will remain divisive in the international community and risk further entrenching divisions in existing non-proliferation and disarmament fora that offer the only realistic prospect for consensus-based progress,” the letter said. “It would be unfortunate if the TPNW were allowed to derail our ability to work together to address pressing proliferation.”
In its explanation of vote on the abstention, India said it wasn’t convinced that the resolution could address the longstanding expectation for a comprehensive instrument on nuclear disarmament. India also maintained that the Geneva-based conference of disarmament is the single multilateral negotiation forum.
India says it is under no obligation to the provisions of the treaty since it never supported it.
According to New Delhi, India did not intend to “be bound by any of the obligations that may arise from it. India believes that this Treaty in no way constitutes or contributes to the development of any customary international law”.
Japan, the only country to have ever been targeted by a nuclear weapon, has for the moment also refused to sign the treaty, saying its effectiveness is dubious without the participation of the world’s nuclear powers.
Although the treaty was approved by the United Nations General Assembly in 2017 by a vote of 122-1, the nuclear nine – the United States, Russia, China, the UK, France, India, Pakistan, Israel and North Korea – along with their allies, including all NATO members, boycotted the vote. However, anti-nuclear activists still hope that the treaty will be more than symbolic, even without the buy-in of the world’s greatest nuclear powers, by stigmatising nuclear programmes and challenging the mentality of the status quo.