Viewpoint by Sergio Duarte
The writer is President of Pugwash. Former UN High Representative for Disarmament Affairs.
NEW YORK (IDN) – The 50th instrument of ratification of the Treaty on the Prohibition of Nuclear Weapons (TPNW) was deposited on October 24 – coinciding with the 75th anniversary of the United Nations Charter. In accordance with its Article 15, the Treaty will enter automatically into force 90 days after that date. When in force, the TPNW will become part of the corpus of positive international law as the first multilateral agreement that comprehensively prohibits nuclear weapons and also addresses the humanitarian consequences of nuclear weapon use and testing, including assistance to victims. Besides, it is the first treaty that explicitly forbids its members from hosting nuclear weapons belonging to other states. [2020-10-27]
Efforts to develop an effective multilateral instrument to directly outlaw nuclear weapons spans several decades. In 1997 Costa Rica submitted a model nuclear weapons convention, later updated in 2007. In 2005 and 2006 proposals for the beginning of multilateral negotiations on a convention banning nuclear weapons were renewed without success. Former UN Secretary-General Ban Ki-Moon’s 2008 five-point plan for nuclear disarmament included support for a nuclear weapons convention.
The Final Document of the 2010 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) expressed deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and stressed the need for all states at all times to comply with applicable international law, including international humanitarian law. In December of that year, the UN General Assembly adopted Resolution 65/59 entitled “Towards a nuclear-weapon-free world: Accelerating the implementation of nuclear disarmament commitments”. Three international conferences on the humanitarian impact of nuclear weapons were held in 2013 and 2014.
Under Article 11 of the Charter the General Assembly is entitled to consider and make recommendations with regard to, inter alia, “the principles governing disarmament and the regulation of armaments”. Its decisions are taken by a majority of votes. From 2012 on, a number of non-nuclear-weapon states, supported by dedicated civil society organizations, took upon themselves the task of stimulating debate at the General Assembly and other forums on means to take forward multilateral disarmament negotiations.
The failure of the 2015 Review Conference of the NPT to adopt a Final Document strengthened the resolve to search for innovative ways to achieve progress in those negotiations. As a result, on December 15 of the same year, the Assembly adopted Resolution 70/33 that decided to convene an open-ended working group “to substantively address concrete effective legal measures, legal provisions and norms that will need to be concluded to attain and maintain a world without nuclear weapons”. Upon the Working Group’s recommendation, the landmark General Assembly Resolution 71/258 decided on the convening of a United Nations Conference to “negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination”.
From the beginning, the nuclear-weapon states rejected such moves and reiterated their conviction that nuclear disarmament – in their view a long term, ultimate objective – could only be achieved through a step-by-step process that took into account the security situation in the world as well as their own security concerns.
At the 2015 NPT review conference, these countries stated: “We reaffirm the shared goal of nuclear disarmament and general and complete disarmament as referenced in the preamble and provided for in Article VI of the NPT,” and added that “We continue to believe that an incremental, step-by-step approach is the only practical option for making progress towards nuclear disarmament while upholding global strategic security and stability.”
The reason why the “step by step approach” is so far seen by so many as having failed to produce results is that for 50 years no such progressive steps directly targeted and organically linked to the achievement of specific NPT disarmament obligations were ever actually taken.
However, the nuclear-weapon states and nearly all their allies chose not to bring their concerns and possible suggestions – including as to what those steps might consist of – to the Open-ended Working Group. They later also chose to shun the negotiations on the legally binding instrument that were carried out in 2017 in accordance with Resolution 71/258 by 122 States under the chairmanship of Ambassador Elayne Whyte-Gómez of Costa Rica. Only the Netherlands, a member of the North Atlantic Treaty Organization (NATO) was present at the debates, where it argued its view that the proposed prohibition treaty was incompatible with the Organization’s concept and doctrine of nuclear deterrence. After approximately two months of deliberations the Treaty on the Prohibition of Nuclear Weapons, leading to their elimination (TPNW), was finally adopted on July 7, 2017, and opened for signature on September 20 of that year.
Upon the adoption of the TPNW, a number of arguments were made by nuclear-weapon States in opposition to the Treaty. The five NPT nuclear-weapon States formally declared that “accession to the ban treaty is incompatible with the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over 70 years”. 
As this reasoning goes, nuclear deterrence is essential to keep the peace and hence so are nuclear weapons, with whose permanence nuclear disarmament is of course incompatible. Therefore, nuclear disarmament – not nuclear weapons – is seen as a threat to the maintenance of peace.
The foreign minister of Japan – the only country ever to suffer an attack with nuclear weapons – also showed concern with the adoption the TPNW when he stated that “participating in a treaty that immediately makes nuclear weapons illegal will undermine the legitimacy of nuclear deterrence”.
In fact, nuclear weapons are already illegal for the 191 non-nuclear members of the NPT and their use has been found to be contrary to the rules of international law in armed conflict, and in particular to the principles and rules of humanitarian law. Furthermore, doctrines based on the threat of annihilation of millions of innocent lives and that risk the extinction of human civilization can hardly be called legitimate.
The Treaty’s conscientious rejection of nuclear weapons draws its strength from the common sense notion that their use would have unacceptable consequences and that a world free from such weapons is the best guarantee against that possibility. Reliance on deterrence means accepting to live under the constant threat of a nuclear conflagration and even more so in view of recent developments in nuclear weaponry that make their use more likely, not to mention the increasingly hostile attitudes of nuclear-armed states toward each other.
Advanced technologies and capabilities – such as hypersonic missiles, undetectable underwater drones, disabling cyberattacks on infrastructures, disruption of satellite communications and aggressive use of biotechnology, to name just a few – suggest that the actual hostile use of such novel means of warfare could set off an unpredictable escalatory sequence.
Such possibilities are clearly being taken seriously: recently, Russia warned that any ballistic missile launched at its territory would be perceived as a nuclear attack that warrants a nuclear retaliation in kind. For its part, the United States’ Nuclear Posture contemplates the use of nuclear weapons against perceived non-nuclear threats to its security.
After the TPNW’s adoption in 2017, NATO stated, inter alia: “Seeking to ban nuclear weapons through a treaty that will not engage any state actually possessing nuclear weapons will not be effective, will not reduce nuclear arsenals, and will neither enhance any country’s security, nor international peace and stability. Indeed, it risks doing the opposite by creating divisions and divergences at a time when a unified approach to proliferation and security threats is required more than ever”.
The argument that the TPNW would exacerbate political tensions on disarmament by “creating divisions” conveniently overlooks that it was actually the NPT that formally instituted the division of the world between possessors and non-possessors of nuclear weapons in the first place. That argument also ignores that nuclear-weapon States act implicitly, particularly after the NPT’s indefinite extension, as if that division is meant to be maintained in perpetuity, thus creating uncertainty and raising tensions within the membership of the latter Treaty. The continued refusal by the nuclear-weapon states to acknowledge and act on the need for urgent, legally binding and time-bound measures of nuclear disarmament increases frustration and fosters further divisions.
The NATO statement is nonetheless right in that the TPNW will not per se produce reductions in nuclear arsenals. Neither can it magically ensure nuclear disarmament, which of course requires possessor States to engage in good faith with the remainder of the international community. Obviously, the new Treaty will only be fully effective when all nuclear weapons have been irreversibly dismantled and adequate verification procedures are developed and put in place.
This will take hard work, creativity and patience as well as political will, but it is a legitimate and universally-pursued goal ever since nuclear weapons, as well as other weapons of mass destruction, came into being. The objective of prohibiting them was already present in the very first resolution of the General Assembly, unanimously adopted in 1946. Since then it has been possible to outlaw two categories of weapons of mass destruction – bacteriological (biological) and chemical – through the perseverance and cooperation of all nations and with the encouragement of civil society. Seventy-five years after their appearance, nuclear weapons make up the last such category still standing. The TPNW heralds it is high time to get rid of them too.
The TPNW is not incompatible with the NPT. On the contrary, its Preamble reaffirms that “the full and effective implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security”. Moreover, Article 3 prescribes the observance of obligations related to NPT safeguards, and Article 18 states that “The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements to which they are a party, where those obligations are consistent with the Treaty.”
These and other TPNW provisions make clear that, far from undermining the NPT or establishing an “alternative norm” to it, what the new Treaty actually does is to put due emphasis on full compliance with a key NPT norm: the one contained in Article VI. None of the states that acceded to or support the TPNW has ever suggested that the regime instituted by the NPT should be replaced or that it is unnecessary. The Prohibition Treaty does not seek to contradict or undercut the NPT regime, but rather to help put into motion a process that leads to the fulfilment of a key objective: eliminating nuclear weapons.
Notwithstanding its many caveats, each NPT party is committed by Article VI to pursue negotiations in good faith on different sets of measures. In a well-reasoned article published in the Non-proliferation Review Ambassador Luiz Filipe de Macedo Soares, former Secretary-General of the Agency for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (OPANAL), explained that under that provision the parties to the NPT, whether they have nuclear weapons or not, are perfectly entitled to negotiate on “effective measures relating to nuclear disarmament” as therein prescribed. This is precisely what the negotiators of the TPNW did. The open-ended and transparent character of the Working Group and of the actual negotiation of the Ban Treaty leaves no doubt as to the good faith in which its activities were carried out.
Even before the TPNW enters into force, much can be done in favour of nuclear disarmament in the existing multilateral forums and through negotiations, bilateral or otherwise, or by means of individual decisions. Certain measures are worthwhile in themselves and can contribute to the shared goal of a world without nuclear weapons, such as the promotion of the entry into force of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), the commencement of work on a fissile material treaty that takes into account existing stocks and the reduction of nuclear forces. Other actions aimed at lowering the risk of their use would certainly be valuable and useful. To reaffirm that “a nuclear war cannot be won and must never be fought” is a constructive proposition. However, these actions are not a substitute for actual disarmament.
Lately, public attention to the issue of nuclear disarmament appears to be waning. Governments and mainstream media in nuclear armed states and their allies extoll the purported value of their armament and seldom dwell on the risks inherent in the possession of atomic arms or on the catastrophic consequences of their use and usually blame adversaries for actions that increase tensions. They do not seem to realize that each increase in the stealth, speed, accuracy and explosive power or new technological advancement of their weapons immediately engenders countermeasures by potential adversaries, in a never-ending competition for elusive supremacy. The enduring threat posed by nuclear weapons is also more easily dismissed or brushed aside in a context dominated by pressing economic and social concerns – and by polarized politics.
All responsible members of the international community should strive to reverse this worrisome trend. The positive, convergent objectives and features of the NPT and the TPNW should be used to advance agreement on effective nuclear disarmament measures and at the same time to preserve and strengthen the non-proliferation regime. Inaction and complacency are not acceptable options. Regardless of their views on the Ban Treaty all responsible States must work together to reinforce the common will to achieve a world free of nuclear weapons. The consequences of failing to recognize this urgent need are simply too costly.
In a message marking the 75th anniversary of the nuclear attack on Hiroshima and Nagasaki, Pope Francis remarked that not only the use but the mere possession of nuclear weapons is immoral. All those who wish and strive for a peaceful environment for themselves and their descendants should take heed of his ponderings: “It has never been clearer that, for peace to flourish, all people need to lay down the weapons of war, and especially the most powerful and destructive of weapons: nuclear arms that can cripple and destroy whole cities, whole countries”.
This is precisely the objective of the promoters of the TPNW. [IDN-InDepthNews – 27 October 2020]
Photo: The European Atomic Energy Community (Euratom) inspectors conduct safeguards inspections at URENCO (an international supplier of enrichment services and fuel cycle products for the civil nuclear industry) in the Netherlands. Credit: IAEA/Dean Calma.
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 The first two such Conferences were held in Oslo (2013) and Nayarit (2014). The last one, held in Vienna in 2014, concluded, inter alia, that the impact of a nuclear detonation, irrespective of the cause, would not be constrained by national borders and could have regional and even global consequences, and that no state or international body could address in an adequate manner the immediate humanitarian emergency or long-term consequences caused by a nuclear weapon detonation in a populated area, nor provide adequate assistance to those affected. At the Conference Austria proposed a pledge “to stigmatize, prohibit and eliminate nuclear weapons in light of their unacceptable humanitarian consequences and associated risks”, which was subsequently endorsed by 128 countries.
 Statement by the People’s Republic of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America to the 2015 Treaty on the Non-Proliferation of Nuclear Weapons Review Conference”, http://www.un.org/en/conf/npt/2015/statements/pdf/P5_en.pdf.
 “Joint Press Statement from the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear Weapons,” United States Mission to the United Nations, July 7, 2017, https://usun.state.gov/remarks/7892. “
 Taro Kono, “Kakuheiki Kinshi Jyoyaku” [Treaty on the Prohibition of Nuclear Weapons], Blogos, November 21, 2017, http://blogos.com/article/260530/.
 In a 1996 Advisory Opinion, the International Court of Justice (ICJ) concluded both that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law," and that “states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.”
 “Press Release (2017) 135: North Atlantic Council Statement on the Treaty on the Prohibition of Nuclear Weapons,” North Atlantic Treaty Organization, September 20, 2017, https://www.nato.int/cps/ua/natohq/ news_146954.htm.
 “The Treaty on the Prohibition of Nuclear Weapons and Its Discontents”, Non-Proliferation Review, Feb/March 2018, vol. 25.