On 24 October, the Treaty on the Prohibition of Nuclear Weapons (TPNW) reached the required number of 50 states to enter into force; the treaty is now likely to be operational from January 2021, and is being hailed as a ‘historic milestone’ for the international community. However, the world’s eight known nuclear-equipped powers—the United States (US), Russia, China, Britain, France, India, Pakistan, and North Korea—are visibly absent from the signatories and states parties list, drawing into question the efficacy of such a treaty in achieving its aim.
The TPNW was initially approved by the UN General Assembly in July 2017, with the approval of 122 of the body’s 193 members. While the Netherlands opposed and Singapore abstained, the eight nuclear countries and their allies—including Israel, who is widely believed to possess nuclear weapons of mass destruction (WMD)—boycotted the negotiations entirely.
The TPNW—spearheaded by the International Campaign to Abolish Nuclear Weapons (ICAN), a Nobel Peace Prize-winning coalition—provides a comprehensive set of prescriptions for states participating in nuclear weapons activities, including undertakings to not develop, produce, test, possess, acquire, stockpile, or use (or threaten to use) nuclear weapons. States parties are also prohibited from allowing other states to station, install, or deploy nuclear weapons and other nuclear explosives in their sovereign territory. In addition, states parties are also obligated to provide assistance to victims and help with environmental remediation in case of destruction caused by the use or testing of nuclear explosives. Lastly, the Treaty does not include its own verification process; rather, each state party is mandated to maintain existing safeguards as per agreements with the UN’s nuclear watchdog, the International Atomic Energy Agency (IAEA), and encourages those who do not already have agreements to at least enter a Comprehensive Safeguards Agreement with the body.
Supporters of the TPNW have argued that the treaty will end a “legal gap” in the international system that has not been explicitly outlawed by its predecessor, the landmark 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Until now, despite their potential catastrophic consequences, nuclear weapons were the only WMD not banned under international law. Those who have ratified the Treaty stress that the prohibition initiative reinforces tenets of the NPT that call for nuclear disarmament, reducing the salience regarding nuclear weapons and helping move towards more urgent action to reduce the risk of nuclear warfare.
However, a persistent critique of the TPNW by nuclear states and their allies, especially the US, has been that the Treaty destabilizes the NPT. The day that the Treaty was adopted, Washington, London, and Paris inked a joint statement in which they claimed that the TPNW risks “undermining the existing international security architecture which contributes to the maintenance of international peace and security”. Further, the White House wrote a letter to the states parties, stating that they made “a strategic error”, goading them to retract their ratifications. The American letter also alleged that the TPNW has reversed the verification and disarmament guidelines of the NPT and that the P5 and the US’ NATO allies “stand unified in our opposition to the potential repercussions” of the agreement. “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 […] It would be unfortunate if the TPNW were allowed to derail our ability to work together to address pressing proliferation,” the letter said.
But these claims are not necessarily substantiated. For one, the TPNW explicitly supports the NPT in its preambular paragraph, which reaffirms the “full and effective implementation” of the NPT and acknowledges it as the “cornerstone of the nuclear disarmament and non-proliferation regime”, and emphasizes its crucial role in promoting international security.
Instead, the TPNW should be seen as an addition to the NPT, whose main aim was to prevent the spread of nuclear arsenal and eventually eliminate them entirely. “There’s no way you can undermine the Nonproliferation Treaty by banning nuclear weapons. It’s the end goal of the Nonproliferation Treaty,” said Beatrice Fihn, executive director of ICAN. More crucially, the NPT itself requires non-signatory nations (i.e., states beyond the P5) to abandon their nuclear pursuits in exchange for guaranteed access to the P5’s nuclear energy technology for peaceful, civilian use and the commitment of nuclear states to make controlled moves towards nuclear disarmament. Specifically, Article VI of the NPT obligates “Each of the Parties to the Treaty… to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.”
The TPNW also directly references Article 11 Paragraph 1 (c) of the NPT, which says that states should not, under any circumstances, receive or control nuclear weapons and explosives, directly or indirectly. Not only does the Treaty require states parties to withdraw any nuclear weapons from operational status and destroy them, but Article 1 Paragraph 1 (e) also outlines an assistance provision that prohibits the use of fissionable source material to the P5 for the purpose of maintaining their existing nukes. Therefore, in a way, the TPNW adds a protective layer to NPT by restricting the source of vertical proliferation, in addition to the latter’s existing norms of horizontal proliferation.
Another criticism of the TPNW is that it ignores the Additional Protocol, which requires states parties to enter a compulsory agreement with the IAEA to grant the body added inspection authorities. In addition to verification checks laid out by the Comprehensive Safeguards, the Additional Protocol provides the Agency assurances about the completion status and accuracy of declared and undeclared activities. The Protocol gives the inspectorate expanded access to records and environmental samples, allowing it to assess radiation measurements and apply seals and other tamper-detection devices. While the Treaty does not obligate parties to follow the Model Additional Protocol Safeguards Agreement INFCIRC/540, it sets the less stringent Safeguards Agreement INFCIRC/153 (Corrected) as its minimum requirement for non-proliferation verification.
Furthermore, while states parties are not obligated to negotiate or enforce the Protocol by the TPNW, they are also not explicitly required to do so by the NPT. Yet, by 2017, only 132 of the NPT’s 190 parties had implemented Additional Protocols anyway, indicating that the TPNW has a bright future ahead. Further, the TPNW requires states who have eliminated their nuclear weapons programmes prior to 2017 to agree to safeguards very similar to the Additional Protocol, obligating them to provide credible proof that they no longer have any undeclared nuclear activities and materials, and that they are not diverting those that have been declared as part of peaceful activities to illegally make weapons.
Several analysts are also concerned about forum shopping—the possibility that non-nuclear weapons states may choose to leave the NPT and join the TPNW to avoid stricter verification requirements. A report by the Norwegian Academy of International Law, however, posits that TPNW ratification does not offer parties a legal pretext to leave the NPT, and does not alter requirements laid down by the NPT for withdrawal.
Legal comparisons with the NPT aside, the claim that a blanket ban on nuclear weapons would jeopardize nuclear deterrence strategies of countries is concerning, mainly because nuclear states have shifted from reducing their nuclear arsenal to talks about “modernization” and promoting the development of “usable” nukes. In essence, this is provoking the threat of a nuclear arms race, which is the opposite of what the NPT, and the concept of nuclear deterrence itself, aims to achieve. For example, the US has pulled out of crucial agreements like the JCPOA and the INF Treaty, and has also been unable to reach a consensus with Russia on the future of the New START, which is set to expire very soon. It is incredibly contradictory that Washington claims to want a nuclear-free world but continues to maintain a nuclear arsenal for defence.
At the core of the debate is the fact that the P5, the three other nuclear weapons states, and their allies are threatened by the TPNW’s delegitimization of continued possession of nukes, pitting the Treaty at odds with the existing nuclear status quo, which has grown complacent about the potential risks of a nuclear war. It is alarming that Japan, the only state in history to have ever experienced the devastation of a nuclear attack, has also not signed on to the Treaty. However, it is even more alarming that the US, whose atomic test was the cause of this destruction, has not yet ratified the 1994 Comprehensive Nuclear Test Ban Treaty (CTBT). Several experts have opined that an overarching aim of the TPNW is to shame states that continue to ignore their global obligations and maintain/build their nuclear arsenal. Internationally stigmatizing nukes by deeming them illegal could sway public opinions in allies of nuclear weapons countries, pressuring them to take necessary actions—similar to US’ continued sanctions programme on Iran.
For example, Australia insists that the ANZUS—a trilateral security agreement between Australia, New Zealand, and the US—is inherently incompatible with the TPNW, since it may require joint military operations that involve the deployment of nukes. A 2013 Australian Defence White Paper also says, “As long as nuclear weapons exist, we rely on the nuclear forces of the United States to deter nuclear attack on Australia. Australia is confident in the continuing viability of extended nuclear deterrence under the Alliance, while strongly supporting ongoing efforts towards global nuclear disarmament.” Likewise, NATO membership is tied to the idea of nuclear deterrence, where non-nuclear states rely on the protection offered by nuclear states.
However, experts contend that Canberra’s stance is “absurd, obscene and reckless”. Although the security provided by bilateral relationships with nuclear powers may dissuade countries like Australia from committing to the TPNW, this line of thinking must be abandoned in order to realize the goal of disarmament. It is for this reason that New Zealand has ratified the TPNW despite also being a party to the ANZUS.
At some point, both nuclear states and the non-nuclear states who fall under their security umbrella will have to give up their nuclear deterrence strategies if they are truly committed to a nuclear-weapons-free world. The notion that deterrence has been crucial “in keeping the peace in Europe and North Asia for 70 years” appears to be shifting—even though India recently reiterated its support to the no-first-use policy, it did not hesitate to signal a threat to abandon it when tensions with Pakistan peaked last year.
The TPNW is, therefore, now more crucial than ever, especially given the dissonance and obstacles that surround the practice of nuclear weapons limitations in the current international order. The only truly safe future is one where nuclear weapons are no longer in existence, and that can only come when nuclear weapons states shrug the deterrence narrative and actively focus on disarmament. As UN Secretary-General Antonio Guterres said, all non-proliferation initiatives “converge in the same direction, and the final objective must be to have a world with no nuclear weapons”.
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SOURCE: NORWEGIAN PEOPLE'S AID