Nuclear weapons ban: treaty enters into force

On January 22, the Treaty on the Prohibition of Nuclear Weapons (TPNW) enters into force. How should this treaty be assessed and what impact will it have? An analysis by Thomas Hajnoczi.

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Note: The text was first published on the platform of the Center for Strategic Analysis (CSA)
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The facts
75 years after the atomic bombs were dropped on Hiroshima and Nagasaki, which caused immeasurable suffering to hundreds of thousands of civilians and continue to do so today, there is now a clear ban on this weapon of mass destruction under international law with the entry into force of the Treaty on the Prohibition of Nuclear Weapons. Bans on biological and chemical weapons were imposed decades ago by the relevant conventions.

The very first resolution of the first session of the UN General Assembly in 1946 called for the destruction of all nuclear weapons. This central concern has motivated many initiatives since then, including the Non-Proliferation Treaty, which came into force in 1970. This fundamental treaty represents a deal between the non-nuclear weapon states, which commit not to acquire or develop nuclear weapons, and the nuclear weapon states, which commit to nuclear disarmament. 50 years later, the nuclear-weapon states are far from achieving the goal of nuclear disarmament and have not even begun to develop a plan on how to proceed. In 2020, according to the American Federation of Scientists, there were some 13,410 nuclear warheads in the arsenals of the nine nuclear-armed states, five of which are party to the Non-Proliferation Treaty. Instead of disarming, they are pursuing modernization programmes costing billions and basing their future security policy on the retention of their nuclear armaments, although they are still committed to the unequivocal pledge made in 2000 to completely eliminate their nuclear weapons. In the case of biological and chemical weapons, the prohibition norm triggered the destruction process. A legal ban is needed to eliminate an entire class of weapons. Furthermore, it is also needed to prohibit future attempts to reacquire them, as the knowledge to build nuclear weapons remains. It is therefore undisputed that a world without nuclear weapons cannot be achieved without a legal prohibition norm. Since the adoption of the Comprehensive Nuclear Test Ban Treaty by the UN General Assembly in 1996 – which has still not entered into force – no multilateral nuclear disarmament negotiations have been held. The responsible body, the Conference on Disarmament in Geneva, has not even been able to agree on an agenda since then due to the consensus principle. For this reason, Austria, together with Mexico and Norway, launched an initiative in the UN General Assembly to continue multilateral nuclear disarmament negotiations. As a result, working groups were set up twice to develop a program for such negotiations. The working group’s report from 2016 includes a call to start negotiations on a ban on nuclear weapons within the framework of the UN General Assembly. The resolution subsequently submitted by Austria together with other countries to the UN General Assembly received a clear majority, which is why negotiations on the drafting of the Nuclear Weapons Ban Convention took place in New York in 2017.

Although they were invited to the negotiations, the nuclear weapon states and those countries under their “nuclear umbrella”, with the exception of the Netherlands, did not take part in the negotiations. Ambassadors from nuclear weapon states and some of their allies even held a protest outside the General Assembly Hall at the start of the negotiations, during which US Ambassador Nick Haley declared that as a mother she could not be in favor of a nuclear weapons ban. This boycott of the negotiations contradicted the annual US statements that a legal prohibition norm is necessary to achieve a nuclear weapons-free world. By staying away, the nuclear-weapon states accelerated the progress of negotiations, as all negotiating parties now had an interest in constructive and results-oriented negotiations and in achieving a good treaty text. On July 7, 2017, the treaty text was adopted by 122 states, with the Netherlands voting against and Singapore abstaining.

 

The treaty prohibits the development, testing, production, transfer, possession, stockpiling, use and threat of use of nuclear weapons. It also prohibits the deployment of foreign nuclear weapons and supporting, encouraging or inducing these prohibited activities. States that still possess nuclear weapons or have stationed them on their territory can also accede on condition that they make a legal commitment to destroy or remove them with a time-bound plan. The treaty also strengthens the IAEA’s safeguards agreements, as it requires them from all parties to the treaty, prohibits them from being reduced to a lower level if they exist, and requires nuclear-weapon states to enter into safeguards agreements for all nuclear activities for the first time. It also calls for reporting and national implementation measures such as criminal law provisions. Provisions on victim assistance and environmental remediation, international cooperation and assistance, regular meetings of states parties as well as the usual legal issues are also included in the text of the treaty. During the negotiations, great care was taken to ensure that the TPNW is fully consistent with the Non-Proliferation Treaty. In the preamble, it reaffirms the crucial role of the Non-Proliferation Treaty and describes it as the cornerstone of the nuclear disarmament and non-proliferation regime. The TPNW is necessary for the full realization of the nuclear disarmament provision in the Non-Proliferation Treaty and does not contradict the Non-Proliferation Treaty, but strengthens it. The TPNW was opened for signature at the United Nations in New York in September 2017, with 86 states having signed by January 2021. The number of 50 ratifications required for entry into force was reached in October 2020, meaning that it will enter into force 90 days later, on January 22, 2021.

Of particular relevance is

• The TPNW is a result of the increasing focus on the catastrophic humanitarian consequences and unacceptable risks of nuclear weapons. The three conferences on the humanitarian consequences in 2013 and 2014 in Oslo, Nayarit (Mexico) and Vienna contributed to this. Leading experts presented the latest scientific findings there. Terms such as “nuclear winter”, which leads to millions of deaths even on continents spared from nuclear confrontation, and the dangers of hacking nuclear weapons systems are now also known to the general public. Even the best medical and humanitarian aid capacities would be far from sufficient to provide effective assistance to the victims of a nuclear weapon explosion.
• The risks of nuclear weapons are considerable, despite all attempts by nuclear weapons states to minimize them. As long as nuclear weapons exist, they can detonate at any time due to an error, misunderstanding or technical defect and not just an order to use them. A nuclear weapon explosion has almost been triggered several times and could only be prevented by luck at the last second. The fact that this has not yet happened in no way reduces the probability of such a catastrophe occurring. Just like in roulette, where you can sometimes experience a series of five black numbers in a row, you know that the ball will land on red at some point.
• The only guarantee that this will never happen and that the catastrophic humanitarian consequences will certainly not occur is a ban on nuclear weapons with the subsequent destruction of all nuclear weapons. For this reason, at the end of the conference on the humanitarian consequences of nuclear weapons in Vienna in December 2014, Austria called for a ban on nuclear weapons in the “Austrian Pledge” (later renamed the “Humanitarian Pledge”) in order to close the legal gap. This declaration was subsequently endorsed by more than 130 states. The then Foreign Minister Sebastian Kurz issued a declaration on the humanitarian consequences of nuclear weapons on behalf of as many as 159 countries at the UN General Assembly in 2015.
• The conferences on the humanitarian consequences of nuclear weapons, like the treaty negotiations, were held with the strong participation of the scientific community, non-governmental organizations and international organizations. This multi-stakeholder model, typical of 21st century diplomacy on issues of fundamental importance for the future of humanity, had already proven its worth in the environmental field. In recognition of civil society’s contribution, ICAN (International Coalition against Nuclear Weapons) was awarded the Nobel Peace Prize in 2017. The importance of the role of civil society is underlined by opinion polls in nuclear weapons states, which show a majority in favor of banning and destroying nuclear weapons.

This is how the author sees it:

• The establishment of a broader concept of security in recent years has helped to shape the premises of the TPNW. There is no contrast between national and humanitarian security; rather, national security is the security of the people living in a particular country. These people would suffer in a particular way if their home state were to use nuclear weapons. Firstly, through an expected nuclear counter-attack by the attacked country and secondly, through the global effects of a detonation of nuclear weapons.
• The nuclear weapons states argue that they do not want to use their nuclear weapons anyway, but that their existence is irreplaceable for maintaining security through nuclear deterrence. Whether or not “mutual assured destruction” – abbreviated to “MAD” – was once effective in preventing conflict in the bipolar world of the Cold War cannot be proven. What is certain is that it can no longer function in today’s multipolar world with the possibility of hacking nuclear weapons systems and supersonic missiles traveling at up to 20 times the speed of sound. Since the concept of nuclear deterrence stands and falls with the credibility of its actual use in an emergency, it would be ineffective without the willingness to wipe out millions of people with nuclear weapons. Even President Reagan said that if nuclear weapons were only kept for nuclear deterrence, it would be better to get rid of them.
• The TPNW is opposed by those countries that support the continued existence of this type of weapon of mass destruction in contradiction to the obligations of the Non-Proliferation Treaty. If one does not strive for a world without nuclear weapons, then logically one must also oppose a ban on nuclear weapons. This stance is in stark contrast to the fact that the same states are fully behind the ban on other weapons of mass destruction.
• With the drafting of the TPNW, the broad majority of states that actually want a world free of nuclear weapons no longer waited for the nuclear-weapon states in view of the decades-long standstill in disarmament efforts, but took action themselves. The nuclear-weapon states are concerned that they have lost their monopoly on disarmament diplomacy and treaties on nuclear weapons.
• As non-nuclear weapon states cannot destroy the nuclear weapons of others, the TPNW was designed purely as a prohibition treaty. Criticism that it does not eliminate a single nuclear weapon and does not contain any detailed verification provisions therefore misses the point of the treaty. The TPNW creates the legal basis for genuine nuclear disarmament without anticipating its precise details such as concrete verification measures. This was already expressed in the title of the treaty negotiations, which states: “with a view to their total destruction”. This means that the TPNW only represents one step – albeit an important one – towards a world free of nuclear weapons, which must be followed by others.
• As the use of nuclear weapons intentionally causes great suffering, does not differentiate between combatants and civilians, and even predominantly harms civilians and has a disproportionate effect, it is usually considered to be contrary to the international law of war. The TPNW has now provided the necessary legal clarity and taken the logical step of banning not only the use of nuclear weapons, but nuclear weapons themselves.
• Even if the nuclear weapon states and states that want to remain under their nuclear umbrella are unlikely to join the treaty in the next few years, the TPNW is already having a considerable political impact. The nuclear-weapon states themselves are demonstrating this by trying to propagandize against the treaty with great commitment – they could also have ignored it. The pressure on the nuclear weapons states to finally disarm has increased, and a clear majority of states are now working together with the goal of eliminating nuclear weapons. There are also already economic implications. More and more large investment funds, such as the Norwegian Oil Fund, are removing companies in the nuclear weapons industry from their portfolios.
• With its entry into force, the TPNW is undoubtedly part of the international disarmament architecture and makes its contribution in conjunction with the other disarmament treaties.
• Austria will continue its leadership role at the 1st Meeting of States Parties in Vienna in a year’s time. Because as Foreign Minister Alexander Schallenberg told the UN General Assembly: “Nuclear weapons cannot bring security, rather they are a threat to our security.”