The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) in New York, on July 7, 2017, shifted the paradigm in nuclear disarmament after more than twenty years of stagnation in the field. After biological and chemical weapons bans in 1972 and 1993, respectively, the remaining weapons of mass destruction will be banned once the TPNW enters into force. Even though there is considerable disagreement on the practical impact of a treaty for nuclear disarmament and international security, the award of the Nobel Peace Prize in 2017 to the International Campaign to Abolish Nuclear Weapons (ICAN), the coalition that was instrumental in the negotiations and adoption of the treaty, demonstrates the treaty’s significance and immediate impact.
A Report on a May 1, 2018 Panel Discussion
By Seth Shelden, for the Lawyers Committee on Nuclear Policy
In a compelling side event held May 1, 2018 at the NPT PrepCom at the United Nations in Geneva, speakers analyzed nuclear weapons under the rubric of human rights law and law protecting future generations. The event was sponsored by the Basel Peace Office, the International Association of Lawyers Against Nuclear Arms (IALANA) and the Abolition 2000 Working Group on Nuclear Weapons and International Law.
On the first anniversary of the UN Treaty on the Prohibition of Nuclear Weapons (TPNW), new YouGov polling commissioned by the International Campaign to Abolish Nuclear Weapons (ICAN) has found an overwhelming rejection of nuclear weapons. The poll was conducted in the four EU countries that host US nuclear weapons: Belgium, Netherlands, Germany and Italy. In each country, an overwhelming majority of people surveyed were in favour of removing the weapons from their soil, and for their countries to sign the Treaty that bans them outright.
What did the survey find?
1. At least twice as many people are in favour of removing the weapons than keeping them.
2. At least four times as many people are in favour of their country signing the TPNW than not signing the TPNW.
3. At least four times as many people are against companies in their country investing in nuclear weapons activities than in favour of it.
4. A strong majority of people are against NATO buying new fighter jets that are able to carry both nuclear weapons and conventional weapons.
France must ratify the Nuclear Weapon Ban Treaty
For the 50th anniversary of the NPT  and the first anniversary of the Nuclear Weapon Ban Treaty , Le Mouvement de la Paix commissioned to the IFOP a poll based on “French, military spending and elimination of nuclear weapons” in collaboration with French newspapers La Croix and Planète Paix. This study was conducted from June 22 to 25, 2018, based on a sample of 1001 people over 18 years, using the quota method. Such report had already been conducted in 2012 by the same institute for the pacifistic organization.
Continue reading: Press Release: Survey of Mouvement de la Paix
We are deeply alarmed by increasing risks that nuclear weapons will be used by intent, miscalculation or accident. The Singapore Summit is an encouraging sign that the dangerous US-North Korea confrontation will give way to a process leading to a peaceful and denuclearized Korean peninsula. Nonetheless, the danger of nuclear war in this new moment may be greater than at the height of the Cold War; it is surely more unpredictable. Global nuclear disarmament – not just preventing the spread of nuclear weapons – is imperative.
This statement addresses the new US-Russian nuclear arms race; the North Korean situation; US actions in relation to the agreement and Security Council resolution regarding Iran’s nuclear program; and ongoing risks of accidents and miscalculations involving nuclear weapons. At the end, we recommend actions to be taken by IALANA affiliates and other civil society actors.
1) The US Nuclear Posture Review released 2 February 2018 moves the world toward nuclear inferno. It fails to propose any initiatives, bilateral or multilateral, for arms control and disarmament, and rejects US ratification of the Comprehensive Nuclear-Test-Ban Treaty. It proposes two new capabilities, a low-yield warhead deployed on submarine-launched missiles and a sea-based, nuclear-armed cruise missile, and carries forward the destabilizing replacement of the existing air-launched cruise missile with a stealthier, more capable version. The review also repeatedly refers to the role of nuclear weapons in responding to “non-nuclear strategic attacks”.
Similarly alarming signals are coming from Russia. In a 1 March 2018 address, President Vladimir Putin described the development of an array of new nuclear weapons delivery systems, including a nuclear-powered cruise missile, an underwater drone carrying “massive nuclear ordinance”, and a multiple warhead ballistic missile with virtually unlimited range capable of flying over the South as well as the North Pole.
US and Russian plans for a new nuclear arms race – vertical proliferation – blatantly disregard the Nuclear Non-Proliferation Treaty. The NPT preamble declares the “intention to achieve at the earliest possible date the cessation of the nuclear arms race.” And, NPT Article VI requires the pursuit of negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date. Yet there are no negotiations on the subject taking place or in sight. Further, stopping vertical proliferation is not enough. The agenda should now be:
- adoption of policies of non-use of nuclear weapons in recognition of the incompatibility of their use with international humanitarian law as well as the principles of humanity and dictates of public conscience, as is set out in the preamble to the Treaty on the Prohibition of Nuclear Weapons and subsequently reaffirmed by the International Red Cross and Red Crescent Movement;
- fulfilment through good-faith negotiations of the principal objective of Article VI, the elimination of nuclear arsenals, as set forth in the International Court of Justice’s unanimous 1996 affirmation of “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.”
2) With the exchange of threats between North Korea and the United States in 2017, the world probably was the closest it has been to nuclear war since the Cuban Missile Crisis. The Singapore Summit and other moves in 2018 toward resolution of the crisis and achievement of peace and eventual denuclearization on the Korean Peninsula are therefore most welcome. To be sure, complacency is not at all warranted, as the maneuvering over the summit and its limited and vague results demonstrate. Nonetheless, that North Korea has refrained this year from testing nuclear explosives and missiles is a very positive step. Also noteworthy is the reaffirmation in the Panmunjom Declaration of the Non-Aggression Agreement precluding the use of force by North Korea and South Korea in any form against each other. The US and North Korea must reach the same result, as IALANA called for in its statement of 10 October 2017. Progress is important not only for the paramount reason of avoiding war, which might very well become nuclear. It also is crucial for the purpose of preserving the non-proliferation regime and proceeding with global nuclear disarmament.
We underline that the people and government of South Korea have taken a leading role in seeking a peaceful solution to the long confrontation on the Korean Peninsula that is at the root of the nuclear crisis there. The current South Korean government was brought to power by a powerful democracy movement, and continues to receive overwhelming public support for its peace initiatives. These actions show that a mobilized population can affect government policy at the highest level, and should be an inspiration for people everywhere.
3) The US declaration that it will no longer implement the Joint Common Plan of Action and will reimpose sanctions on Iran inconsistent with the JCPOA is a major blow to international governance and to peace and disarmament in the region and the world. The JCPOA, para. 28, provides that the parties to it “commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation.” A viable international order requires good-faith execution of agreements whether considered political or legal. Success in international cooperation is not possible if promises and representations cannot be relied upon.
The IAEA has found that Iran is in compliance with the JCPOA, and no extraordinary circumstances otherwise justify the US action. Further, the UN Security Council unanimously endorsed and incorporated the agreement in Resolution 2231 of 2015. The JCPOA likewise provides for its integration with Security Council action. Under the JCPOA, para. 34(ii), “this JCPOA and the commitments in this JCPOA come into effect” ninety days after endorsement of the JCPOA by the Security Council, as was done by Resolution 2231. The resolution establishes a mechanism linked to Iran’s implementation of the JCPOA for the lifting of Security Council imposed sanctions against Iran. The last provision of its preamble “[u]nderscor[es] that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions.”
In para. 2, Resolution 2231 “calls upon” UN member states to take “actions commensurate with the JCPOA and this resolution” and to refrain from “actions that undermine implementation of commitments under the JCPOA.” Paragraph 26 “urges” all states “to cooperate fully with the Security Council in its exercise of the tasks related to this resolution.” Though the resolution does not label either paragraph a “decision” of the Security Council, in adopting them the Council without question was acting to fulfil its “primary responsibility for the maintenance of international peace and security” conferred by Article 24 of the UN Charter. In a 1971 advisory opinion, the International Court of Justice, taking into account “all circumstances”, held legally binding a provision of a Security Council resolution which provision “calls upon all States” to refrain from acts inconsistent with the Council’s determination that “the continued presence of the South African authorities in Namibia is illegal.” Similarly here, under all the circumstances, paras. 2 and 26 of Resolution 2231 are legally binding directives of the Security Council.
The US is acting contrary to those directives, thereby undermining the effectiveness of the Security Council in addressing issues of nuclear non-proliferation and disarmament in Iran and generally. We suggest consideration of a UN General Assembly request for an International Court of Justice advisory opinion on the legal consequences of Resolution 2231 and the JCPOA. Such an opinion would provide important guidance, inter alia, regarding US sanctions imposed on non-US enterprises engaged in commercial dealings in Iran and with Iranian enterprises.
The other parties to the JCPOA – Iran, United Kingdom, France, Russia, China, Germany, and European Union – must work to ensure the continued implementation of the agreement. And all nations and global civil society should make clear that US contravention of the JCPOA and Resolution 2231 is unacceptable and dangerous and must be reversed.
4) The existence and deployment of nuclear weapons pose intolerable dangers in the contexts mentioned above and in others as well, as in India-Pakistan and US-China relations. Moreover, the risks of accidents and miscalculations involving nuclear weapons are always with us, as was illustrated by the erroneous alert that nuclear missiles were incoming endured by Hawaiians in January 2018. Alarms determined to be false only minutes before a nuclear response might be triggered have occurred throughout the nuclear age and will continue to do so. One day our luck will run out.
In view of this combination of ominous developments and ongoing risks, nations and civil society actors must act urgently and effectively to set the world – and the US in particular – on a pathway that rather than elevating nuclear risks leads to the repudiation of use of nuclear weapons under any circumstances and the negotiation of the global elimination of nuclear arsenals. Among the steps IALANA affiliates and other civil society actors can take are the following:
- Urge their governments to condemn the new US-Russian nuclear arms race and to support resolutions to that effect in the General Assembly and its First Committee;
- Support continued full implementation of Security Council Resolution 2231 and the JCPOA by Iran, UK, France, Russia, China, Germany, and European Union, and also urge the US to recommit to their full implementation;
- Urge their governments to condemn the US actions in relation to Resolution 2231 and the JCPOA and to support a resolution to that effect in the General Assembly and its First Committee;
- Ask their governments for an assessment of the legal status of Resolution 2231 and the JCPOA;
- Suggest that their governments consider requesting the International Court of Justice to render an advisory opinion on the legal consequences of Resolution 2231 and the JCPOA;
- Commend South Korea, North Korea, and the United States for their dramatic moves toward ending the dangerous standoff between North Korea and the US, and urge all parties to engage productively in negotiations;
- Urge their governments to sign and ratify the Treaty on the Prohibition of Nuclear Weapons.
 Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, has expressed the view to IALANA that both paras. 2 and 26 are legally binding on all UN member states. The German parliamentary research service reached the same conclusion regarding para. 2 in “Völkerrechtliche Bewertung der Aufkündigung des Iran-Nuklearabkommens durch die US-Administration,” Wissenschaftliche Dienste, Deutscher Bundestag, WD 2 – 3000 – 074/18, 2018.
A Prescription for Disaster: Trump’s Nuclear Posture Review, Guy Quinlan, President, and John Burroughs, Executive Director, Lawyers Committee on Nuclear Policy (LCNP), 12 March 2018 (available at www.lcnp.org)
US-Russia Nuclear Arms Racing: Still Crazy After All These Years, Andrew Lichterman, Western States Legal Foundation, and John Burroughs, LCNP, Truthdig, 16 March 2018 (available at www.lcnp.org)
Council of Delegates of the International Red Cross and Red Crescent Movement, Resolution CD/17/R4, Working towards the elimination of nuclear weapons: 2018–2021 action plan, adopted in Antalya, Turkey, 10–11 November 2017
North Korea: Solution or Disaster, IALANA Statement, Peter Weiss, President Emeritus; Peter Becker and Takeya Sasaki, Co-Presidents, 10 October 2017 (available at www.ialana.info)
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16
‘This Is Not a Drill’: The Threat of Nuclear Annihilation, Clyde Haberman, New York Times, 14 May 2018
The Geneva-based Conference on Disarmament (CD) recently decided to start substantive work after failing to adopt a programme of work for two decades.
Is this the result of the adoption of the Treaty Prohibiting Nuclear Weapons and the attribution of the Nobel Peace Prize to the International Campaign to Ban Nuclear Weapons (ICAN)? Does this procedural decision imply more flexible positions on the part of some countries, including those possessing nuclear weapons? Is there any chance that the CD would commence serious negotiations about the items on its agenda? Expectations seem to remain modest in the Geneva disarmament community.
Members of the Abolition 2000 global network to eliminate nuclear weapons, meeting in Geneva for their Annual General Meeting over the weekend, call on peace and disarmament activists to help save the Iran Nuclear Deal – Joint Comprehensive Plan of Action (JCPOA).
Under the deal, Iran has agreed to verified control of its nuclear energy program to ensure that it is not possible to divert technology or materials to make a nuclear bomb. In exchange, Iran gets relief from some of the international sanctions that had been imposed on them.
Foreign ministers and other negotiators of the Iran deal partners when it was concluded – China, France, Germany, the EU, Iran, Russia and USA.
President Trump has called for a renegotiated deal, adding additional demands on Iran (such as on their missile program) and for the ‘sunset’ clause to be revoked. Such additional demands would likely lead to Iran leaving the deal.
President Trump has announced that if other partners to the deal – UK, Russia, France, China, Germany and the European Union – do not agree to his demands by May 12, he will not re-certify the deal, and the US will return to aggressive sanctions and the possibility of military attack against Iran.
Abolition 2000 members at the AGM call on activists around the world to publicly support the deal by organizing vigils or delegation visits to US embassies in your country before May 12.
If you cannot vigil at a US embassy, then send them a letter expressing your concern.
Please invite media to these events, or send the media copies of your letters to the US embassies.
And please send us copies of your letters, press releases and photos of your actions. We can forward these to US administration officials.
Find the call at the Abolition2000 website
In June 2017 IALANA presented a letter on the abolition of nuclear weapons to the conference on the negotiations of a treaty to ban nuclear weapons at the UN in New York. It was signed by more than 500 students or professions of law such as Law Professor, Attorney, Judge, Law Student, Other Law Profession. The letter states:
Nuclear arms are the only weapons of mass effect and destruction not yet prohibited by an international convention, even though they are the most destructive and indiscriminate weapons ever created.
People are capable of good-faith, law-guided, problem solving at all levels of society: family, neighborhood, national, international. Cooperative global systems have been devised for the protection of human rights, protection of the environment and prevention of climate change, prohibition of specific weapons, and more. These skills must now be applied to the next obvious step: the prohibition and elimination of nuclear weapons.
As lawyers we underline that the abolition of nuclear arms is required by an international legal obligation set forth in Article VI of the Nuclear Non-Proliferation Treaty and embedded in United Nations practice going back to the very first General Assembly resolution, in 1946. The International Court of Justice unanimously concluded in 1996 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.” That obligation is unconditional and universal.
We also emphasize that the use of nuclear weapons is presently incompatible with international humanitarian law regulating the conduct of warfare. Above all, due to their uncontrollable blast, heat, fire, and radiation effects, nuclear weapons cannot meet the requirement of distinguishing between the civilian population and combatants and between civilian objects and military objectives. Indeed, the catastrophic consequences of use of nuclear weapons vastly exceed the ordinary boundaries of armed conflict and adversely impact populations in neutral states, the natural environment necessary to sustain human life, and future generations. The use of nuclear weapons accordingly also violates international human rights law, most centrally the right to life. If a use of force is illegal under the UN Charter or humanitarian law, the threat to use such force is also illegal. However, the nuclear-armed states refuse to acknowledge these patent legal truths; hence the need to codify the illegality of use and threatened use of nuclear arms in a global prohibition.
The Emergency Committee of Atomic Scientists, including Albert Einstein, warned in 1947: “Through the release of atomic energy, our generation has brought into the world the most revolutionary force since prehistoric man’s discovery of fire. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalisms.” Yet today we face this incendiary combination once again.
Faced with the ongoing and intensifying planetary danger and no longer willing to accept a two-tier world, this year about 130 countries have joined together at the United Nations to negotiate a treaty to prohibit nuclear weapons, leading to their elimination. The nuclear-armed states and their closest allies have refused to participate. Nonetheless, the nuclear ban treaty effort constitutes an important affirmation of the norms against nuclear weapons.
We call on all nations to participate in the negotiations and to join the treaty once adopted. It will be a major step towards negotiation of a comprehensive agreement on the achievement and permanent maintenance of a world free of nuclear arms.
We also call for implementation of well-known measures to reduce nuclear dangers and facilitate nuclear disarmament, including ending nuclear sharing, in which Belgium, Germany, Italy, Netherlands, and Turkey host US nuclear bombs, and ratification of the Comprehensive Nuclear Test Ban Treaty by hold-out states, including China, India, Pakistan, and the United States, to bring it into legal force.
The abolition of nuclear weapons is a responsibility the present generation owes to the Hibakusha, the survivors of the 1945 atomic bombings, and to all past and future generations.
Civil Society Presentation to NPT PrepCom, Geneva
International Association of Lawyers Against Nuclear Arms
25 April 2018
Delivered by Amela Skiljan, Board member, German IALANA
On 22 August 2017, a true hero of the nuclear age, Tony de Brum, passed away. He did many important things in his life. One of them was that as Foreign Minister, he spearheaded the Marshall Islands’ nuclear disarmament cases in the International Court of Justice. When the cases were filed, in April 2014, he said: “Our people have suffered the catastrophic and irreparable damage of nuclear weapons and we vow to fight so that no one else on Earth will ever again experience these atrocities.” Regrettably, by the narrowest of margins the Court refused to adjudicate the cases on their merits. But de Brum’s call to action should serve as an inspiration on other fronts, not least this NPT review process.
We are now faced with a contradictory environment. A majority of the world’s states last year adopted the Treaty on the Prohibition of Nuclear Weapons. Going entirely in the other direction, the two largest nuclear powers, the United States and Russia, appear poised to resume nuclear arms racing reminiscent of the darkest days of the Cold War.
The US Nuclear Posture Review released on February 2 proposes two new capabilities, both aimed at Russia, a low-yield warhead deployed on submarine-launched missiles, and a sea-based, nuclear-armed cruise missile. It also endorses replacement of an air-launched cruise missile with a stealthier, more capable version. And the review emphasizes the role of nuclear weapons in responding to “non-nuclear strategic attacks,” notably cyberattacks.
In a March 1 address, President Vladimir Putin described an array of new nuclear weapons delivery systems, including a nuclear-powered cruise missile, an underwater drone carrying “massive nuclear ordinance”, and a multiple warhead ballistic missile with virtually unlimited range capable of flying over the South as well as the North Pole.
All of this stands in blatant disregard of the NPT. The NPT preamble declares the “intention to achieve at the earliest possible date the cessation of the nuclear arms race”. And of course, Article VI requires the pursuit of negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date.
The concept animating Article VI was that quantitative build-up and qualitative improvement of nuclear arsenals was to be ended prior to negotiations on their elimination. By the mid-1990s, the agenda had been partly achieved. Nuclear arsenals were reducing in size, and nuclear explosive testing was halted. Indeed, in a 1995 declaration, France, Russia, the United Kingdom and the United States welcomed “the fact that the nuclear arms race has ceased.”[*]
But the gains of the 1990s are now being reversed. Hence the need to go back to the basics. Qualitative – and possibly quantitative – nuclear arms racing should now be out of the question. The “early date” has long since passed! Yet there are no negotiations on the subject taking place or in sight, clearly a breach of Article VI, which requires such negotiations to be pursued and concluded. And the weapons development described by Putin and the Nuclear Posture Review is a breach of the legal requirement of good faith in relation to the objectives of Article VI.
As we approach its fiftieth anniversary, the NPT risks losing its appeal as a tool for disarmament, and its viability as a bulwark against proliferation is even in question. The implementation of well-known steps is vital. They include a pledge not to initiate nuclear warfare; hold-out states’ ratification of the Comprehensive Nuclear-Test-Ban Treaty to bring it into legal force; and ending nuclear sharing, the NPT-violative arrangement for five states to host and potentially use US nuclear bombs.
Above all, nuclear-armed states must abandon the myth that ‘nuclear deterrence’ keeps us safe. Now more than ever, it is imperative to comply with the unanimous conclusion of the International Court of Justice: “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.”
Brochure by Daniel Rietiker and Manfred Mohr
The events of July 7, 2017 at the United Nations in New York deserve our attention. The Treaty on the Prohibition of Nuclear Weapons (TPNW)
constitutes a real paradigm shift, and the end of a period of stagnation in
nuclear disarmament of more than 20 years. After biological (1972) and
chemical weapons (1993), the remaining type of weapons of mass destruction will be banned once the treaty enters into force.
Even though there is considerable disagreement on the practical implications of the treaty for nuclear disarmament and international security, its significance has been confirmed by the fact that the International Campaign to Abolish Nuclear Weapons (ICAN), the coalition that was instrumental in the negotiation and adoption of the treaty, was awarded the 2017 Nobel Peace Prize.
End of March 2018, 57 States have signed the TPNW and 7 have ratified it
so far. 50 ratifications will be necessary for the treaty to enter into force.
Once in force, it will reinforce the norm against nuclear weapons, create new momentum for nuclear disarmament, give civil society a new tool in its fight for a world free from nuclear weapons, and put more pressure on Nuclear Weapons States (NWS) and their allies.
The new instrument is a “treaty” in the sense of the 1969 Vienna Convention on the Law of Treaties (VCLT), namely an “international agreement concluded between States in written form and governed by international law (…)”. 1 As such, it is quite a complex construction that will certainly raise many questions of interpretation during its hopefully long life. The present short article-by-article commentary is intended to facilitate understanding of the new treaty, without going into great legal detail. It is intended for a general audience, including persons not possessing deep knowledge of international law. We hope it will stimulate debate about this new instrument, inform representatives of civil society, teach young people and students, and assist diplomats and State agents in their work towards ratification of the treaty.
Read the full text: Ban Treaty Commentary_April 2018
Read the full text in Deutsch/ German: Deutsch – Kommentar zum Vertrag über das Verbot von Kernwaffen_180613