building blocks for nuclear ban treaty – NPT and advice of the International Court of Justice

New York – The Convention on the Prohibition of Nuclear Weapons (TPNW) becomes binding law for participating states on 22 January 2021. Entry into force took effect on October 24, the date of the 75th anniversary of the United Nations, when Honduras becomes the 50th state to ratify the TPNW and reach the threshold set by the treaty.

It is a sign performance of the 122 states, no nuclear weapons, that the TPNW negotiated and adopted in 2017, along with the International Committee of the Red Cross (ICRC), which provided expert advice, and the International Campaign to Remove Nuclear Weapons (ICAN), a civil society initiative that won the Nobel Peace Prize in 2017.

Together, the negotiating states, the ICRC and ICAN have taken responsibility for creating a path to the global elimination of nuclear weapons, mainly because the world’s most powerful states – all nuclear weapons – do not.

In a statement issued on October 24, UN Secretary-General António Guterres said the entry into force of the TPNW “is the culmination of a global movement to draw attention to the catastrophic humanitarian consequences of the use of nuclear weapons. represents a significant commitment to the total elimination of nuclear weapons, which remains the highest disarmament priority of the United Nations. ‘

The core provisions of the TPNW prohibit the development, testing, possession and threat or use of nuclear weapons. The treaty is a version of the rise of ‘humanitarian disarmament’ and also provides assistance to victims of the testing and use of nuclear weapons and for the restoration of the environment in areas affected by testing and use.

It is further noted in the preamble that the “catastrophic consequences of nuclear weapons cannot be adequately addressed, cross national borders, have serious implications for human survival, the environment, socio-economic development, the world economy, food security and the health of today. and future generations, and has an excessive impact on women and girls, among other things due to ionizing radiation. ‘

The preamble also notes that “the waste of economic and human resources on programs for the production, maintenance and modernization of nuclear weapons.”

The TPNW and the Nuclear Non-Proliferation Agreement (NPT)

In assessing the potential importance of the TPNW, it is important to understand how it strengthens and builds on existing international law, in particular the obligations set out in the 1970 NPT and its analysis in a 1996 opinion of the International Court of Justice.

The NPT has 191 states, making it one of the most signed international agreements. It is acknowledged that five parties (China, France, Russia, United Kingdom, United States) possess nuclear weapons pending their elimination under Article VI of the Treaty.

All other NPT members are obliged not to procure nuclear weapons, subject to guarantees monitored by the International Atomic Energy Agency (IAEA).

Similarly, members of the TPNW are obliged not to acquire nuclear weapons subject to IAEA guarantees, and the importance of the NPT for international peace and security is recognized in the preamble to the TPNW.

But the TPNW goes beyond the NPT: any member of the TPNW is forbidden to ‘lure’ a state to use or threaten nuclear weapons on its behalf. TPNW therefore states that parties may not participate in alliance arrangements with nuclear-armed states in which nuclear weapons may be used on their behalf, or in any other way or in any other circumstances that request or cooperate in the use of nuclear weapons on their behalf.

In contrast, about 30 members of the NPT are in the North Atlantic Treaty Organization (NATO) or in other alliances in which U.S. nuclear weapons are explicitly part of defensive positions. U.S. nuclear weapons have even been stationed on the territory of five NATO states, a practice specifically prohibited by the TPNW.

To date, no member of a nuclear alliance has signed or ratified the TPNW, nor any of the nine nuclear weapons (the five NPT nuclear weapons states plus India, Israel, North Korea and Pakistan).

The TPNW and the International Court of Justice

In 1996, the International Court of Justice (ICJ) delivered an opinion on the legality of the threat or use of nuclear weapons requested by the UN General Assembly.

Like the TPNW, the opinion arose as a result of a major collaborative effort between states – mostly of the Non-Aligned Movement (NAM), a very large group of mostly South American states – and civil society in the form of the World Court Project, a coalition. of more than 500 groups. Attorneys Committee on Nuclear Policy was a leader of the World Court Project.

The Court found that the threat or use of nuclear weapons was ‘in general’ contrary to international humanitarian law prohibiting the infliction of indiscriminate damage and unnecessary suffering in warfare.

The court did not want to judge the legality of the use of low-yield nuclear weapons in remote areas and the use of nuclear weapons as retaliation against a nuclear attack or as a state’s survival.

Thus, although the opinion of the court was not definitive, it is also fair to say that the scope of the reasoning was in all circumstances directed at illegality.

The opinion stimulated the subsequent in-depth investigation of the question, as well as initiatives implying whether the use of nuclear weapons is categorically illegal, including a 2011 resolution of the International Committee of the Red Cross and Red Crescent Movement and the Vancouver Declaration of 2011 .

The TPNW prohibits any threat or use of nuclear weapons by a state party. Furthermore, the preamble contains rules and principles of international humanitarian law that apply to all states, and ‘believes’ that ‘any’ use of nuclear weapons violates the law.

The view in the TPNW therefore goes beyond the ICJ’s finding of general illegality, which excludes its use in all circumstances. At the very least, 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 has also adopted the analysis of a question not put to it, the nature of the nuclear disarmament obligation set out in Article VI of the NPT and other international law.

In a unanimous conclusion quoted in the preamble to TPNW, the court found that ‘there is an obligation to strive for good faith and to come to an end, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. ‘

Although the court did not say so explicitly, its reasoning is strong that the obligation is universal, and so are the nuclear weapons states that are not with the NPT.

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

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

The reaction of the NPT nuclear weapons

Apart from China, the NPT nuclear weapons states constantly express strong opposition to the TPNW, claiming that it is unlikely to affect the development of international law that goes beyond the obligations of parties to the TPNW.

The much better position would be to welcome the TPNW, based on the NPT and other international law, and as a powerful statement of the humanitarian and legal principles that should lead to the abolition of nuclear weapons.

Most importantly, all nuclear-armed states must strengthen their current weak efforts to fulfill the disarmament obligation and participate in the creation of a world without nuclear weapons.

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Dr John Burroughs is Senior Analyst, Attorneys Committee for Nuclear Policy


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