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

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

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 Aboilish 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.

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Statement on the Imminent Entry into Force of the Treaty on the Prohibition of Nuclear Weapons

As of 24 October, 50 states have ratified the Treaty on the Prohibition of Nuclear Weapons (TPNW). By its terms (Article 15), the treaty will enter into force in 90 days, becoming legally binding for states that have joined the treaty.

The treaty was negotiated in 2017 and adopted in New York on 7 July 2017 by 122 states voting in favor (one against and one abstention), none of them possessors of nuclear arms. They 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 despite the disarmament obligation set forth in Article VI of the Nonproliferation Treaty (NPT). The central theme of the process leading to the adoption of the treaty was the catastrophic humanitarian consequences of use of nuclear weapons.

The TPNW robustly recognizes and reinforces existing international law requiring the non-use and elimination of nuclear weapons. That law applies to states whether or not they join the treaty, as the treaty’s preamble recognizes.

  • The preamble reaffirms the need for all states at all times to comply with international humanitarian law forbidding, inter alia, the infliction of indiscriminate harm and unnecessary suffering, as well as with international human rights law, and considers that any use of nuclear weapons would be contrary to international humanitarian law.
  • It also reaffirms the universal obligation to pursue in good faith and conclude negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. This obligation was affirmed in a unanimous conclusion of the International Court of Justice in the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.

In an innovation in the nuclear weapons sphere reflecting the rise of human- and victim-centred disarmament, the TPNW sets forth obligations of assistance to victims of testing and use of nuclear weapons and of environmental remediation of areas affected by testing and use (Article 6). It also requires states parties in a position to do so to assist affected states parties with victim assistance and environmental remediation (Article 7). These provisions are important because they recognize and address concretely the unacceptable suffering and devastation that have resulted from the use and testing of nuclear arms, and which could result again if current trends in global affairs are not reversed.

China, France, the Russian Federation, United Kingdom, and United States are the five states acknowledged by the NPT to possess nuclear weapons pending their elimination in accordance with its Article VI, and also the permanent members of the Security Council. They have repeatedly and jointly stated their opposition to the TPNW and their intention not to join the treaty. The United States reportedly has gone so far as to press states that have ratified the TPNW to withdraw their ratifications so that the treaty does not enter into force.

The Permanent Five’s opposition to the TPNW is counterproductive to the cause of disarmament. They instead should welcome the treaty as a reinforcement of obligations of non-acquisition of nuclear weapons set out in the NPT and regional nuclear-weapon-free zone treaties and as a powerful statement of the moral, political, and legal principles that should guide the abolition of nuclear arms.

IALANA welcomes the ratification of the TPNW by 50 states triggering its entry into force in 90 days. We encourage other states to consider ratification in the near future.

IALANA is a partner of the International Campaign to Abolish Nuclear Weapons.

Japanese Translation

Wind of Change in Nuclear Disarmament: The Treaty on the Prohibition of Nuclear Weapons as a New Example of Humanitarian, Victim – centered Arms Control

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.

READ the full paper by Daniel Rietiker