Back in the year 2017, the global security agenda was shaken by the debates held at the United Nations General Assembly (UNGA) that led to the adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) that should have set a framework towards the world, free of nuclear weapons. It has been the consecutive inherently political move forward, following the humanitarian impacts of nuclear weapons initiative.[1] The TPNW should have reinforced the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), in particular, the second pillar, ‘Disarmament,’ which prescribed under Article VI that the negotiations among state-parties are to be held to agree on a set of principles and measures towards gradual and comprehensive nuclear disarmament.[2]
In 2021, the TPNW entered into force, symbolizing the new epoch within the nuclear agenda. Yet, the discourse around the novel legal framework among scholars has been intense, gripped over an argument that the TPNW may spark nuclear-armed states to intensify the political measuring of nuclear weapons as a deterrence factor essential for national security.[3] Even though some scholars tend to think positively about the Treaty, it seems reasonable to record that it has been out of the loop since 2017.
The ongoing modernization of nuclear forces in Russia, China, the United States, and the UK, along with the recent Russian withdrawal (2023) of its ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) have demonstrated the untimeliness of the TPNW. The heating tensions worldwide have revoked the decisiveness of nuclear weapons. Exempt from nuclear-armed states, those states that have the potential of acquiring nukes (listed in the Annex II of the CTBT[4]) seem to approach the TPNW skeptically as well. Therefore, as of today, the TPNW has only 69 ratifications.[5]
This article will further examine the interrelation between the TPNW and NPT and the reasons behind the general lack of interest in banning nuclear weapons. Essentially, it seems fair to assume that the TPNW will not disincentivize states to adhere to the existing norms and principles governing states’ policies in the context of nukes. The major problem is rather the political environment where the TPNW was proposed and negotiated.
The TPNW and its main objectives
First and foremost, the TPNW marks the significant shift in approaching nuclear disarmament by taking the humanitarian stance which emphasizes the impacts of weapons on civilians and seeks to prevent and alleviate human suffering. In the past, state-centric discourse has prevailed while reflecting on the necessity of reducing nuclear arsenals, especially during the Cold War Era. However, the TPNW puts a strong emphasis on humanitarian exposure of nuclear weapons. It recognizes catastrophic effects of their use on human health, the environment, and overall human well-being.[6]
Furthermore, it is worth highlighting that the TPNW stands out by the increasing inclusiveness of the parties involved in negotiating and drafting the Treaty. The work over and adoption of the TPNW saw significant engagement and advocacy from NGOs and international organizations; apart from that, civil society played a crucial role in raising awareness about the humanitarian consequences of nuclear weapons and pushing for their prohibition. Therefore, the TPNW recalls the interests of all the affected sides instead of focusing on specific countries directly rooted in the nuclear agenda.[7]
Hence, in a nutshell, via placing people at the core of the discourse and projecting the possible consequences humanity may experience the TPNW aims to stigmatize the possession and use of nukes. By declaring them illegal, the TPNW seeks to create a normative framework that delegitimizes the use of these weapons similar to previous measures to ban other indiscriminate and inhumane weapons such as anti-personnel landmines and cluster munitions.[8] Similarly, as John Borrie and Tim Caughley argue, the central objective behind the TPNW is to reframe the approaches toward nukes instead of mindlessly prohibiting them. The authors preclude that the military forces that desire to retain the usage of nuclear weapons must present compelling arguments that would justify their acceptability from a humanitarian standpoint, irrespective of any claimed military advantages.[9]
The TPNW and the NPT – compliment Vs. oppose
While the key idea and the objectives of the TPNW seem clear, if analyzing the Treaty exempt from other legal frameworks and instruments within the nuclear agenda, challenges are emerging when dealing with the intersection of all, in particular among the TPNW and the NPT. Therefore, Steven Hill recalls that, according to some scholars, the conflicting overlap of the TPNW, the NPT, and other legal instruments creates an ambiguity for states on where, when, and which of the documents sets the norms for a particular case.[10] Although the TPNW recalls the Non-Proliferation Treaty and posits a novel step towards nuclear disarmament, corresponding to the critical notes of the Article VI of the NPT, it is yet to be determined whether the TPNW is complimentary or opposing to the NPT.
The drastic solution to the nuclear issues set up by the TPNW has led to intense disputes about the applicability of the Treaty. On the one hand, as was mentioned above, the Treaty can be reasonably considered a part of implementing the NPT (Article VI). Nevertheless, nuclear-armed states along with those under the ‘nuclear umbrella’ have been opposing the TPNW since the early days of negotiations. Thus, the Western powers have been advocating that the Treaty contradicts with the principle of nuclear deterrence, while Russia suggested that the legal implications of banning nuclear weapons for the NPT will be devastating.[11] The principal disagreement is that the TPNW dilutes the distinction between the nuclear-armed states and those who cannot possess nuclear weapons, which is believed to be the central milestone of nuclear non-proliferation and, therefore, international stability, prescribed within the NPT.
Ultimately, the views on the complimentary or opposing nature of the TPNW toward the NPT depend on a stance one is taking. For some states, NGOs, Civil society organizations, and international organizations, the TPNW is consistent regarding the nuclear disarmament roadmap and aligns with the provisions of the Non-Proliferation Treaty. Yet it legally constraints those who rely on nuclear weapons in their foreign policy trajectory leading to the latter resisting the novel legal instrument.[12] Nonetheless, it does not mean those states resist other legal frameworks within the nuclear agenda.
The TPNW’s loopholes and untimeliness of the Treaty
While the TPNW posits a new set of norms and principles leading to a comprehensive nuclear disarmament it does not seem to be constructive. First and foremost, the TPNW was negotiated without the participation of nuclear-armed states. Critics argue that any progress towards disarmament requires the involvement and commitment of the states that possess nukes. Without their engagement, the treaty may be viewed as lacking practicality and effectiveness.[13] Essentially, in this occasion, the TPNW can be reasonably considered a product of political will, the same way as some scholars consider the NPT.[14] In other words, there might be the argument that both documents have been set in accordance with the political objectives of a particular group of states that exercise specific advantages from the agreements which imperatively have no chance to constitute a universally accepted legal framework.
Furthermore, critics contend that the TPNW needs more explicit mechanisms for verifications and implementation, making it easier to enforce. The absence of a comprehensive plan for dismantling existing nuclear arsenals and ensuring compliance could be seen as limitation, raising doubts about the effectiveness of the Treaty. However, some experts argue that the verifications have not been the central aspect of the negotiations.[15] Nonetheless, the ambiguous and uncertain language of the document only increases the skepticism among nuclear-armed states and hinders further dialogue.
At the same time, there is the claim of setting up the customary international law based on the TPNW. Nevertheless, it does not seem reasonable if we consider the states’ practice. Most significantly, speculating on the number of states ratifying the Treaty, it will never be treated as practice. Apart from that, considering the states’ practice, it is essential to include and observe nuclear-armed states as parts of the TPNW, which is highly unlikely to occur soon due to the abovementioned reasons.[16]
Speculating on the reasons for the ongoing disputes behind the TPNW it seems fair to presume that the TPNW was proposed at the wrong time, when the tensions in the international arena have been heating, with the increasing intensity between Russia and the West in the face of the Ukrainian conflict, the US-China competition and the ongoing nowadays frictions on including China into arms limitation treaties, the modern instability in the Middle East that led to the war between Israel and Palestine, and multiple other conflict zones worldwide, to name a few. The contemporary security agenda has revoked the importance and decisiveness of nukes, and the TPNW has faced the time when nuclear-armed states would never accept the dismissal of nuclear weapons. Nonetheless, it is also imperative that it has not led to disincentivizing states to adhere to other legal instruments within the nuclear agenda. Although the nuclear milestones, like the NPT and CTBT, are occasionally shaken, they remain relevant, with states trying to maintain the status quo and the existing legal architecture.
Conclusion
In conclusion, the TPNW represents a crucial paradigm shift in the global approach to nuclear disarmament. Its emphasis on humanitarian consequences of nuclear weapons along with the inclusive involvement of non-governmental organizations and international entities underscore a departure from the state-centric discourse that prevailed during the Cold War. The TPNW, with its noble objectives to stigmatize and delegitimize nuclear weapons, seeks to establish a novel normative framework.
Nonetheless, nowadays following the deepening interstate disputes and the increasing role of nuclear weapons in policymaking, the TPNW has become the primary or nearly solo victim of political discourse between nuclear-armed states and the ones pursuing comprehensive nuclear disarmament.
[1] Rebecca D. Gibbons, The Humanitarian Turn in Nuclear Disarmament and the Treaty on the Prohibition of Nuclear Weapons (Non-proliferation Review, Vol. 25, No. 1-2, 2018: 11-36), p. 23-24.
[2] Treaty on the Non-Proliferation of Nuclear Weapons (UNODA). URL: https://disarmament.unoda.org/wmd/nuclear/npt/.
[3] Amb. Thomas Graham, The Nuclear Non-Proliferation Treaty: Delayed Review – Issues Old and New (Journal for Peace and Nuclear Disarmament, Vol. 4, No. 1, 2021: 186-195), p. 191.
[4] The Comprehensive Nuclear-Test-Ban Treaty (CTBTO). URL: https://www.ctbto.org/our-mission/the-treaty.
[5] TPNW signature and ratification status (ICAN). URL: https://www.icanw.org/signature_and_ratification_status.
[6] Christopher P. Evans, Questioning the Status of the Treaty on the Prohibition of Nuclear Weapons as a ‘Humanitarian Disarmament’ Agreement (Utrecht Journal of International and European Law, Vol. 36, No. 1, 2021: 52-74), p. 55-57.
[7] Ibid.
[8] Nick Ritchiea, Amb. Alexander Kment, Universalizing the TPNW: Challenges and Opportunities (Journal For Peace And Nuclear Disarmament, Vol. 4, No. 1, 2021: 70-93), p. 75-76.
[9] John Borrie, Tim Caughley, Viewing Weapons Through a Humanitarian Lens: From Cluster Munitions to Nukes? (Irish Studies in International Affairs, Vol. 25, 2014: 23-43), p. 29.
[10] Steven Hill, NATO and the Treaty on the Prohibition of Nuclear Weapons, Chatham House Research Paper (Chatham House: London, Jan. 2021), p. 24.
[11] Tobias Vestner, Treaty Law to Signal to Outsiders: The Case of the Treaty on the Prohibition of Nuclear Weapons (Washington International Law Journal, Vol. 31, No. 3, 2022: 420-462), p. 426.
[12] Nick Ritchie, A hegemonic nuclear order: Understanding the Ban Treaty and the power politics of nuclear weapons (Contemporary Security Policy, Vol. 40, No. 4, 2019: 409-434), p. 425-426.
[13] Heather Williams, A nuclear babel: narratives around the Treaty on the Prohibition of Nuclear Weapons (The Nonproliferation Review, Vol. 25, No. 1-2, 2018: 51-63), p. 56.
[14] Harald Müller, The Nuclear Non-proliferation Treaty in Jeopardy? Internal Divisions and the Impact of World Politics (The International Spectator, Vol. 52, No. 1, 2017: 12-27). p. 13.
[15] Williams, A nuclear babel: narratives around the Treaty on the Prohibition of Nuclear Weapons, p. 55.
[16] Gail Lythgoe, Nuclear Weapons and International Law: The Impact of the Treaty on the Prohibition of Nuclear Weapons (EJIL:Talk!, Blog of the European Journal of International Law, Dec. 2020).
Key words: International Security; Nuclear Weapons; TPNW
NPR
F4/SOR – 24/11/06
