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International Law Leaves No Room for Nuclear Weapons

About the author: Nate Van Duzer (J.D. candidate, 2023) is a Contributor to Travaux. He has worked with local policymakers and elected officials for nearly a decade, first as an aide to a Seattle city councilmember and later with the administration and school board of Seattle Public Schools. He holds a BA in history from Georgetown University and a Master of Global Affairs (International Peace Studies concentration) from the University of Notre Dame.

Photo courtesy of Julian Ortiz, JEO Photography, available here.

General Mark Milley’s actions to guard against an uncounseled nuclear strike provide another stark reminder of the dangers inherent to these missiles. History is rife with close calls, where accidents or poor judgment almost led to nuclear war.

Earlier this year, Travaux provided an overview of the new Treaty on the Prohibition of Nuclear Weapons (TPNW), which entered into force in January 2021 and took a clear stand against these weapons of mass destruction. With the nuclear weapons industry in the United States currently booming, it is appropriate to take a closer look at this treaty and the status of nuclear weapons in international law.

Skeptics have questioned the potential effectiveness or meaningfulness of TPNW given that states with nuclear weapons have actively opposed it, but such skepticism often overlooks the full breadth of the treaty’s provisions and the power of international norm-setting. This article will further explore the implications of TPNW, which has now been ratified by 56 countries and signed by 30 more. In doing so, this article also compares TPNW to other arms control treaties and assesses nuclear weapons under current international humanitarian law.

Binding Prohibitions

Since TPNW entered into force, the states who are party to it must follow its binding prohibitions in Article 1, which go beyond testing, developing, or using nuclear weapons. State parties to the treaty may not “[a]ssist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.” Neither may they “[a]llow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.”

This latter provision, Article 1(f), is quite clear in its language and could have serious ramifications. Five European countries host the United States’ nuclear weapons on their territory: Belgium, Germany, Italy, the Netherlands, and Turkey. European support for TPNW, including Article 1(f), is growing. A 2020 poll found that more than 75% of respondents in Italy, Belgium and the Netherlands answered “yes” to the question: “Do you think your country should join [TPNW]?” Should the governments in those countries respond to popular support for the treaty by signing onto the agreement, they could no longer host these weapons.

The broader language of Article 1(e) could likewise affect current nuclear weapons operations. Any NATO member state that joined the treaty could still participate in NATO but would not be allowed to participate in NATO’s Nuclear Planning Group. Any of the seven countries that provide conventional air support for NATO’s nuclear weapons operations would have to withdraw their participation. If any company that contributes directly to nuclear weapons development is headquartered in a state that adopts the treaty, its operations may be affected under this provision.

While states with nuclear weapons currently have no intention of signing the treaty, they may face its tangible effects sooner than they would like. This may explain why these states vehemently oppose TPNW and actively pressured other countries not to sign the treaty in an attempt to avoid its entry into force.

Affirmative Obligations

In addition to the prohibitions discussed above, TPNW’s Article 6 and Article 7 place affirmative obligations on its state parties. Article 6(1) mandates adequate assistance to victims of nuclear weapons use and testing, “including medical care, rehabilitation and psychological support, as well as . . . social and economic inclusion.” Article 6(2) calls for “necessary and appropriate measures towards the environmental remediation of areas” contaminated by nuclear weapons testing or use. Article 7 notes that these are shared responsibilities, and states with the capacity to help outside their borders should do so. Article 7(6) emphasizes the responsibility of those state parties that have used or tested nuclear weapons before.

These provisions recognize that the human and environmental costs of nuclear weapons use and testing are significant and ongoing, even if testing has ceased. It is important to note that most of the nuclear powers conducted their tests on colonial territories or near marginalized populations like indigenous peoples. Countries have taken different approaches to remedying the harms caused by nuclear weapons use and testing, but much more work needs to be done. This will naturally entail policy questions and tradeoffs. One commentary has noted that the first meeting of state parties to be held under the treaty—currently scheduled for March 2022—will be critical in setting the stage for what these positive obligations might entail.

Comparisons to Other Arms Control Treaties

In a recent journal article evaluating the future potential of TPNW, two arms control scholars, Richard Lennane and Richard Moyes, compare the treaty to other parallel international instruments. First, they discuss treaties that ban the other categories of weapons of mass destruction (WMD), the 1972 Biological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC). BWC is drafted similarly to TPNW, while CWC contains more detailed disarmament protocols. All eight declared nuclear weapon states have signed and ratified both conventions. The logic of deterrence, while readily applied to justify the possession of nuclear weapons, seems to have been long discarded for these other types of WMD (Israel, the one undeclared nuclear weapon state, has not signed or ratified BWC and has signed but not ratified CWC.)

Second, Lennane and Moyes consider the other more recent humanitarian disarmament treaties, the 1997 Mine Ban Treaty and the 2008 Convention on Cluster Munitions. These instruments have strengthened norms against the use of these weapons. As a result, the authors argue, while a nation may use such weapons from time to time, it usually denies doing so. Like TPNW, these treaties have not achieved universal acceptance, but the authors argue this has allowed a greater emphasis on the humanitarian concerns motivating the treaties. They note that “norm-setting based on humanitarian realities can only effectively be brought to bear if the instrument that is constructed maintains a focus on those humanitarian realities and is not pulled away from them by political pressures.”

TPNW, the Non-Proliferation Treaty, and International Humanitarian Law

TPNW opponents have attempted to argue that the new treaty could give states cover to pull out of the longstanding Non-Proliferation Treaty (NPT). NPT has served as the cornerstone of nuclear non-proliferation for decades and any attempts to undermine it would be concerning. An analysis of the two treaties together finds it unlikely that TPNW membership would lead countries out of NPT. In fact, TPNW provides a natural culmination to Article VI of the NPT, which calls for good faith negotiations to complete disarmament. Should countries leave NPT, it would more likely be due to frustration with the nuclear weapon states’ current lack of commitment to NPT’s Article 6.

Finally, as states with nuclear weapons continue to oppose TPNW, it is worth noting that any potential use of nuclear weapons would likely violate multiple precepts of international humanitarian law, despite an ambiguous advisory opinion on the subject from the International Court of Justice in 1996. The 1977 Additional Protocol I to the Geneva Conventions contains several important principles that “would prohibit the use of nuclear weapons in almost all conceivable scenarios.” First, the Protocol requires that, in warfare, countries distinguish between military and civilian targets. Second, the rule of proportionality requires that an attack on a military target not inflict disproportionate civilian casualties. Third, the Protocol prohibits superfluous or unnecessary suffering even if a state attacks a pure military target. The long-lasting effects of exposure to nuclear weapons may violate this principle. An application of these principles to the U.S. bombings of Hiroshima and Nagasaki found those attacks to violate this Protocol.

In Conclusion

In summary, any defense of nuclear weapon use requires setting aside adherence to international humanitarian law. Proponents of the use of nuclear weapons or nuclear deterrence, which relies on the willingness to use nuclear weapons if necessary, may choose to value their national security over these principles. However, the fact that so few countries make this determination publicly should be questioned.

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