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Building Blocks for Nuclear Ban Treaty: NPT & Advisory Opinion of the International Court of Justice

Dr. John Burroughs is Senior Analyst, Lawyers Committee on Nuclear Policy

Sculpture depicting St. George slaying the dragon. The dragon is created from fragments of Soviet SS-20 and United States Pershing nuclear missiles. Credit: UN Photo/Milton Grant

NEW YORK, Nov 2 2020 (IPS) - The Treaty on the Prohibition of Nuclear Weapons (TPNW) will become binding law for participating states on January 22, 2021. Entry into force was triggered on October 24, the date marking the 75th anniversary of the United Nations, when Honduras become the 50th state to ratify the TPNW, reaching the threshold set by the treaty.

This is a signal accomplishment on the part of the 122 states, none nuclear-armed, that negotiated and adopted the TPNW in 2017, along with the International Committee of the Red Cross (ICRC), which provided expert advice, and the International Campaign to Abolish Nuclear Weapons (ICAN), a civil society initiative that won the 2017 Nobel Peace Prize.

Together, the negotiating states, the ICRC, and ICAN took responsibility for creating a path toward the global elimination of nuclear weapons, essentially because the world’s most powerful states – all nuclear armed – are failing to do so.

In an October 24 statement, UN Secretary-General António Guterres commented that the entry into force of the TPNW “is the culmination of a worldwide movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It represents a meaningful commitment towards the total elimination of nuclear weapons, which remains the highest disarmament priority of the United Nations.”

The core provisions of the TPNW prohibit development, testing, possession, and threat or use of nuclear weapons. Reflecting the rise of “humanitarian disarmament,” the treaty also provides for assistance to victims of testing and use of nuclear arms and for environmental remediation of areas impacted by testing and use.

Further, the preamble observes that the “catastrophic consequences of nuclear weapons cannot be adequately addressed, transcend national borders, pose grave implications for human survival, the environment, socioeconomic development, the global economy, food security and the health of current and future generations, and have a disproportionate impact on women and girls, including as a result of ionizing radiation.”

The preamble notes as well “the waste of economic and human resources on programmes for the production, maintenance and modernization of nuclear weapons.”

The TPNW & the Nuclear Non-Proliferation Treaty (NPT)

In assessing the potential significance of the TPNW, it is important to understand how it reinforces and builds upon existing international law, notably the obligations set forth in the 1970 NPT and those analyzed in a 1996 Advisory Opinion of the International Court of Justice.

The NPT has 191 states parties, making it one of the most widely subscribed to international agreements. Five states parties (China, France, Russia, United Kingdom, United States) are acknowledged to possess nuclear weapons pending their elimination pursuant to Article VI of the treaty.

All other NPT members are obligated, subject to safeguards monitored by the International Atomic Energy Agency (IAEA), not to acquire nuclear weapons.

Similarly, members of the TPNW are obligated not to acquire nuclear arms subject to IAEA safeguards, and the importance of the NPT to international peace and security is recognized in the preamble to the TPNW.

But the TPNW goes further than the NPT: Any member of the TPNW is barred from “inducing” a state to use or threaten nuclear weapons on its behalf. TPNW states parties are therefore barred from participating in alliance arrangements with nuclear-armed states in which nuclear weapons may be used on their behalf, or in any other way or any other circumstance requesting or cooperating in the use of nuclear weapons on their behalf.

In contrast, some 30 members of the NPT are in the North Atlantic Treaty Organization (NATO) or other alliances in which US nuclear weapons are explicitly part of defense postures. US nuclear weapons are even stationed on the territory of five NATO states, a practice specifically barred by the TPNW.

So far, no member of a nuclear alliance has signed or ratified the TPNW, nor have any of the nine nuclear-armed states (the five NPT nuclear weapon states plus India, Israel, North Korea, and Pakistan).

The TPNW & the International Court of Justice

In 1996, the International Court of Justice (ICJ) delivered an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons requested by the UN General Assembly.

Like the TPNW, the opinion resulted from a major collaborative effort between states – mostly from the Non-Aligned Movement (NAM), a very large group of mostly Global South states – and civil society in the form of the World Court Project, a coalition of over 500 groups. Lawyers Committee on Nuclear Policy was a leader of the World Court Project.

The Court found that the threat or use of nuclear arms is “generally” contrary to international humanitarian law forbidding the infliction of indiscriminate harm and unnecessary suffering in warfare.

The Court declined to assess the legality of use of low-yield nuclear weapons in remote areas and of use of nuclear arms in reprisal against a nuclear attack or when a state’s survival is endangered.

While the Court’s opinion thus was not definitive, it is also fair to say that the thrust of its reasoning was toward illegality in all circumstances.

The opinion stimulated subsequent in-depth examination of the question, as well as initiatives implying or finding use of nuclear weapons to be categorically illegal, including a 2011 resolution of the International Red Cross and Red Crescent Movement and the 2011 civil society Vancouver Declaration.

The TPNW prohibits any threat or use of nuclear weapons by a state party. Further, its preamble recites rules and principles of international humanitarian law applicable, as it notes, to all states, and “considers” that “any” use of nuclear weapons violates that law.

The view taken in the TPNW thus goes beyond the ICJ’s finding of general illegality, ruling out use in all circumstances. At a minimum, then, the TPNW is an important contribution to the ongoing process of stigmatizing and delegitimizing nuclear weapons.

On its own initiative, the International Court of Justice also took on analysis of a question it was not asked, the nature of the nuclear disarmament obligation set forth in Article VI of the NPT and other international law.

In a unanimous conclusion cited in the TPNW preamble, the Court held that “there exists an obligation to pursue in good faith and bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

While the Court did not explicitly say so, its reasoning strongly implies that the obligation is universal, extending to those nuclear-armed states not party to the NPT.

In an annual resolution following up on the ICJ opinion first adopted in 1996 (51/45 M), the UN General Assembly called for all states to negotiate a comprehensive convention providing for elimination of nuclear weapons. The Chemical Weapons Convention and a civil society draft would have been starting points for such an agreement.

The Western nuclear weapon states and Russia showed no interest. The TPNW, championed by non-nuclear weapons states, was a response to this stalemate. It provides a framework, but not detailed provisions, for an elimination process.

The Reaction of the NPT Nuclear Weapon States

Except for China, the NPT nuclear weapon states continue to express firm opposition to the TPNW and to claim implausibly that it does not affect the development of international law going beyond obligations of parties to the TPNW.

The far better position would be to welcome the TPNW as grounded in the NPT and other international law and as a powerful statement of the humanitarian and legal principles that should guide the abolition of nuclear arms.

Most importantly, all nuclear-armed states must invigorate their currently weak efforts to comply with the disarmament obligation and join in creation of a world free of nuclear weapons.


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