Article by Kyle Tang,
The Treaty on the Prohibition of Nuclear Weapons (TPNW) went into effect this January, more than 75 years after the United States detonated the last nuclear weapon over Nagasaki. The bombings of Hiroshima and Nagasaki inflicted unparalleled devastation on the world. Although time has not washed away memories of the aftermath, doubts as to whether humanity has learned its lesson are well founded. Despite calls for nonproliferation by scientists, world leaders, and the International Court of Justice, there were an estimated 13,410 nuclear weapons in existence across the globe in early 2020, and global powers have only now entered a treaty to ban nuclear weapons into force. This is a step towards total nuclear disarmament, but opposition to the TPNW from all nine nuclear-armed nations jeopardizes the efficacy of this new international law.
Treaty on the Prohibition of Nuclear Weapons: The Objectives and Limitations of Its Three Predecessors
Three multilateral UN treaties form the foundation for the TPNW. In 1963, the Soviet Union, the United Kingdom, and the United States signed and ratified the Partial Test Ban Treaty (PTBT), which prohibited all non-underground test detonations of nuclear weapons. Whereas the PTBT was limited in scope, the Comprehensive Test-Ban Treaty (CTBT) sought to ban all nuclear tests. Despite its adoption by the UN General Assembly in 1996, the CTBT never went into effect because eight of the 44 requisite countries, including China, India, and the US, still have not ratified the treaty.
While the PTBT and CTBT made major strides towards disarmament, the landmark 1968 Nuclear Non-Proliferation Treaty (NPT) etched the ultimate goal of “complete disarmament” into the body of international law. Since the NPT opened for signature in 1968, 191 states have joined the Treaty, including five nuclear-armed nations. More countries have ratified the NPT than any other disarmament agreement, making it the “cornerstone” of global nuclear non-proliferation. The NPT was built upon three implicit pillars: non-proliferation, disarmament, and peaceful use of nuclear energy. To advance these three goals, the NPT established a safeguards system, which entrusted the International Atomic Energy Agency (IAEA) with verifying compliance with the NPT. In 1997, the IAEA Board of Governors approved the Model Additional Protocol, which granted nuclear inspectors expanded rights to access countries’ information and locations, providing the IAEA with a fuller picture of countries’ nuclear programs, plans, and material holdings.
In the 50 years since its inception, the NPT has generally promoted its three pillars successfully. The Model Additional Protocol increased the effectiveness of nuclear inspections, and the NPT created the political framework and moral pressure to facilitate reductions of existing nuclear arsenals by 90% from Cold War levels. However, the marginal effectiveness of the NPT in decreasing nuclear arsenals is uncertain. Some experts find that the US and other nuclear-armed nations have treated the “complete disarmament” aspect of the treaty as “decorative language with no force.” High nuclear weapon stockpile estimates and increasingly strained relations between the US, Russia, and China suggest that this is the case. After substantial reductions in nuclear weapon stockpiles during the twilight of the Cold War, the world’s aggregate nuclear weapon inventory has remained relatively stagnant throughout the 21st century. The picture grows bleaker with a look at individual countries. France and Israel have stable nuclear inventories, and China, Pakistan, India, and North Korea are expanding their arsenals. Further, deteriorating US-Russia and US-China relations have erected barriers to cooperative efforts to curb nuclear proliferation and ramp up disarmament.
Modern Developments in the Prohibition of Nuclear Weapons
Frustration over the reluctance of many nuclear-weapons states to reduce their stockpiles was a driving force behind the TPNW. At an NPT review conference in 2010, four of the five NPT nuclear-armed states—the US, UK, Russia, and France—rejected proposals to negotiate a nuclear weapons convention, a legal framework to ban nuclear weapons. On the other end of the spectrum, an overwhelming majority of non-nuclear-armed states showed their support for negotiating a convention.
The clear division in opinion between the nuclear “haves” and “have-nots” gave way to calls to proceed with a nuclear weapons ban with or without the support of the nuclear-armed states. Advocates for such a ban argued that it would impose pressures of legal clarity, stigma, and international connections on those countries which opposed outlawing nuclear weapons. A ban would force countries to justify their decisions not to accept the illegality of nuclear weapons. Additionally, it would worsen already negative public opinions on the use of nuclear weapons. Lastly, it would limit investment in companies that produce nuclear weapons by muddying brand images.
Over 120 UN member nations convened in 2017 to negotiate a legally binding treaty to abolish nuclear weapons. Ultimately, 122 countries voted in favor of the final draft, which became the TPNW. Article 1 of the TPNW lists an extensive series of prohibitions for parties to the treaty, including: developing, testing, producing, manufacturing, acquiring, possessing, stockpiling, transferring, using, and threatening to use nuclear weapons. Article 3 requires non-nuclear-weapon parties to maintain existing IAEA safeguards and accept safeguards based on the model established by the NPT. Finally, Article 4 outlines procedures for nuclear-armed states to become parties to the treaty, including a timeline for eliminating nuclear weapons, responsibilities, and a verification process.
The Road Forward: Shifting Perspectives
The TPNW clearly expresses an overwhelming desire among non-nuclear states for a world without nuclear arms. The ratification of the treaty made it a “key legal instrument” among the ranks of the Geneva Conventions. This bold law reflects shifting tides in the international landscape, as nations that are typically not considered major players in the nuclear debate demonstrate their power as a collective. If the TPNW manages to substantially pressure nuclear-armed nations to increase their rate of disarmament, then the treaty may inspire future movements from non-nuclear weapon states.
However, the absence of support from the nine countries with nuclear weapons is a glaring concern. The US, the UK, and France did not participate in the negotiations leading up to the TPNW, and in fact, issued a joint statement expressing their intent to never “sign, ratify or ever become party to” the treaty. The three nations supported this decision with two main arguments: first, they stated that other nuclear-armed states and almost all states relying on nuclear deterrence did not participate in the negotiations; and second, the three nations asserted their belief that adopting the treaty was “incompatible with the policy of nuclear deterrence.”
The 30-nation NATO alliance also failed to support the TPNW, citing two primary concerns. First, the North Atlantic Council (NAC), NATO’s principal decision-making body, argued that the treaty would be ineffective because it disregards the heightened global tensions in today’s international security environment. NAC reasoned that if NATO adopted the TPNW and disarmed, adversary states would not reciprocate through better behavior. Second, NAC claimed that the treaty would undermine the NPT and cooperation towards nuclear disarmament, arguing that some states may view the TPNW as an alternative framework to the NPT. This could be problematic because the TPNW lacks the NPT’s robust verification mechanisms and safeguards standards. Parties to the TPNW could thus cultivate a positive image by outwardly supporting disarmament, without subjecting themselves to the extensive safeguards standards created by the IAEA via the NPT.
The argument shared by the US, UK, France, and the NAC, that international security conditions are incompatible with nuclear disarmament, should be viewed from a different perspective. Waiting for the perfect moment where security conditions are amenable to disarmament is kicking the can down an infinitely long road. Instead of security conditions being the roadblock to disarmament, disarmament should be the key to softening current international tensions. Under the status quo, it is naive to believe that adversary states will back down simply because other nuclear powers disarm. However, the TPNW has the potential to shift the status quo. The NATO Allies and nuclear-armed nations should concentrate their efforts on bolstering the admittedly raw framework of the TPNW with clear safeguards and verification methods, clarifying the treaty’s role and compatibility with preceding treaties like the NPT, and legitimizing the treaty as enforceable international law.
We will see whether any of the world’s nuclear powers will rally their support behind the TPNW at the postponed the tenth NPT Review Conference this year, where countries will assess progress towards nuclear disarmament, evaluate the success of non-proliferation measures, and discuss the promotion and strengthening of the NPT’s safeguards. Given the close relationship between the TPNW and the NPT, the world will see a critical glimpse of the fate of the TPNW at this year’s Review Conference.
Author
Kyle Tang (J.D. Candidate, Class of 2020) is a Contributor to Travaux. His interests include antitrust law, international arbitration, and privacy law. Kyle holds a B.A. in Economics from the University of California, Berkeley. Before law school, Kyle served as a legislative assistant with the Berkeley City Council.