Abstract
The charge is often made that the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW), now in force and binding on its first fifty States Parties, threatens the existing nuclear non-proliferation regime. Said to be especially at threat is the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), but also the Comprehensive Nuclear-Test Ban Treaty (CTBT), a treaty concluded in 1996 but not yet in force. This chapter examines the detail of the charges, comparing and contrasting the three treaties, and assessing whether the allegations that are made stand up to trial of fact and law. It considers in particular the lack of an explicit definition of nuclear weapons, the nature and consistency of the various treaty obligations and the verification of compliance, as well as the potential for the TPNW to contribute to the development of customary law and whether it distracts from or impedes other disarmament initiatives.
Honorary Professor, Institute for International and Comparative Law in Africa, University of Pretoria.
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Notes
- 1.
Treaty on the Prohibition of Nuclear Weapons (UN Doc A/CONF.229/2017/8); adopted on 7 July 2017; entered into force, 22 January 2021.
- 2.
Article 13, TPNW.
- 3.
Treaty on the Non-Proliferation of Nuclear Weapons (729 UNTS 161); opened for signature at London, Moscow, and Washington, DC, 1 July 1968; entered into force, 5 March 1970. As of 1 January 2021, 190 States were party to the NPT.
- 4.
North Atlantic Council Statement on the Treaty on the Prohibition of Nuclear Weapons, Press Release (2017) 135, Issued on 20 September 2017, https://www.nato.int/cps/ua/natohq/news_146954.htm.
- 5.
Joint Statement by China, France, Russian Federation, United Kingdom and United States, First Committee Thematic Debate (Nuclear Weapons), Seventy-third Session of the UN General Assembly, New York, 22 October 2018, https://cd-geneve.delegfrance.org/Statement-P5-on-the-TPNW-10-22-2018.
- 6.
Ibid.
- 7.
‘The Treaty on the Prohibition of Nuclear Weapons: A Well-Intentioned Mistake’, Remarks by Dr. Christopher Ashley Ford, Assistant Secretary, Bureau of International Security and Nonproliferation, US Department of State, ‘Advancing Disarmament in an Increasingly Dangerous World’, University of Iceland, Reykjavik, Iceland, 30 October 2018, https://2017-2021.state.gov/remarks-and-releases-bureau-of-international-security-and-nonproliferation/the-treaty-on-the-prohibition-of-nuclear-weapons-a-well-intentioned-mistake/index.html.
- 8.
NATO, North Atlantic Council Statement as the Treaty on the Prohibition of Nuclear Weapons Enters Into Force, Press Release (2020) 131, 15 December 2020, https://www.nato.int/cps/en/natohq/news_180087.htm.
- 9.
Ibid.
- 10.
Comprehensive Nuclear-Test Ban Treaty (35 ILM 1439); adopted at New York, 10 September 1996; not yet in force.
- 11.
TPNW, eighteenth preambular para.
- 12.
TPNW, nineteenth preambular para.
- 13.
Article I, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1015 UNTS 163); adopted at New York, 16 December 1971; entered into force, 26 March 1975.
- 14.
Articles II(1)–II(8), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1974 UNTS 45); adopted at Geneva, 3 September 1992; entered into force, 29 April 1997.
- 15.
Articles 2(1), 2(2), and 2(3), Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (2056 UNTS 211); adopted at Oslo, 18 September 1997; entered into force, 1 March 1999.
- 16.
Articles 2(2), 2(3), and 2(15), Convention on Cluster Munitions (2688 UNTS 39); adopted at Dublin, 30 May 2008; entered into force, 1 August 2010.
- 17.
As Willrich 1968, at p. 1464, observed, in 1966 the United States was ‘convinced of the need for such a definition’ in the future NPT but later changed its mind.
- 18.
NATO, ‘NATO and the Non-Proliferation Treaty’, Fact Sheet, March 2017, https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2017_03/20170323_170323-npt-factsheet.pdf, p. 1.
- 19.
This is so, because the energy disseminated by the blast results from that device’s explosive detonation by ordinary chemical processes and not from nuclear fission or fusion, while the radioactive material it disperses occurs as a result of that blast. The US Department of Defense Dictionary of Military and Associated Terms defines a radiological dispersion device as: ‘An improvised assembly or process, other than a nuclear explosive device, designed to disseminate radioactive material to cause destruction, damage, or injury’. ‘Radiological dispersion device’, in US Department of Defense, DOD Dictionary of Military and Associated Terms, Washington DC, December 2020, https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/dictionary.pdf, p. 179.
- 20.
Article II(B)(4)(c), Model Nuclear Weapons Convention in Working paper submitted by Costa Rica, Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/PC.I/WP.17, 1 May 2007, https://digitallibrary.un.org/record/601411?ln=en.
- 21.
P5 Working Group on the Glossary of Key Nuclear Terms, P5 Glossary of Key Nuclear Terms, 1st Edn, China Atomic Energy Press, Beijing, 2015, https://2009-2017.state.gov/documents/organization/243293.pdf, p. 6, para 1.3.5.
- 22.
Article 5, Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean; opened for signature at Mexico City, 14 February 1967; entry into force for each state individually.
- 23.
Under Article IX(3) of the NPT, ‘For the purposes of this Treaty, a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January, 1967.’
- 24.
Article 18, TPNW [added emphasis].
- 25.
Article III(2), NPT.
- 26.
Article 1(1)(e), TPNW.
- 27.
Joint Statement by China, France, Russian Federation, United Kingdom and United States, First Committee Thematic Debate (Nuclear Weapons), Seventy-third Session of the UN General Assembly, New York, 22 October 2018.
- 28.
Hearings on the Treaty on the Non-proliferation of Nuclear Weapons before the Senate Committee on Foreign Relations, 90th Congress, 2nd Session (1968), p. 5. See also on the issues of nuclear sharing arrangements Shaker 1980, pp. 129 et seq., and 191 et seq., most particularly 223–49.
- 29.
Eight specific States must all ratify or accede to the Treaty to trigger entry into force. As of writing, this concerned the following: China (a signatory), the Democratic People’s Republic of Korea (North Korea), Egypt (a signatory), India, Iran (a signatory), Israel (a signatory), Pakistan, and the United States (a signatory). See further on this issue Mackby 2020, at pp. 46–49.
- 30.
Under general and treaty international law of treaties, a State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has either signed or has expressed its consent to be bound by the treaty, pending its entry into force, and provided that such entry into force is not ‘unduly delayed’. Article 18(a) and (b), Vienna Convention on the Law of Treaties; adopted at Vienna, 23 May 1969; entered into force, 27 January 1980. This provision reflects customary law. See, inter alia, Kritsiotis 2018, pp. 271–72; Gragl and Fitzmaurice 2019; Aust 2006; and Palchetti 2011. Whether the entry into force of the CTBT, which was concluded in 1996, is now to be considered ‘unduly delayed’ is not settled, but given the operation of the Preparatory Committee for the CTBT Organization, one may consider that this is not the case.
- 31.
That provision decrees that ‘potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear-weapon States Party to the Treaty on a non-discriminatory basis’. Article V, NPT.
- 32.
Article II, NPT.
- 33.
Article 1(1)(a), TPNW.
- 34.
The potential loophole with respect to computer modelling exists as a result of the lack of knowledge or capability of such actions at the time of negotiation of NPT. Of course, to future proof the Treaty a prohibition on development could have been included in Article II. See on the issue of development Epstein 1976 and Joyner 2011.
- 35.
See on this issue Mackby 2020, at pp. 49–50.
- 36.
Only five States are formally outside the purview of the Treaty. India, Israel, Pakistan, and South Sudan have never adhered to the NPT, while North Korea withdrew from the NPT in controversial circumstances in 2003. The Cook Islands and Niue are bound by virtue of New Zealand’s adherence to the NPT in 1970.
- 37.
Article II, NPT.
- 38.
The term ‘source material’ includes uranium containing the mixture of isotopes occurring in nature; uranium depleted in the isotope 235; and thorium. The term ‘special fissionable material’ means 239Pu; 233U; and ‘uranium enriched in the isotopes 235 or 233’. See Article XX, Statute of the IAEA; and NSG Part 1 Guidelines—INFCIRC/254/Rev.13/Part 1, https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc254r13p1.pdf, ‘Material and Equipment’, Sections 1.1 and 1.2.
- 39.
See, e.g., IAEA, IAEA Safeguards: Serving Nuclear Non-Proliferation, Vienna, 2015, https://www.iaea.org/sites/default/files/safeguards_web_june_2015_1.pdf, p. 9; and Persbo, Mayo and Peterson 2005.
- 40.
This document post-dates the conclusion of the NPT and is thus not specified in the Treaty. A model agreement based on INFCIRC/153 (Corr.) was developed and published in 1974 as GOV/INF/276, Annex A., Rockwood 2013, p. 12.
- 41.
The revised version of the Agreement with limited textual corrections (IAEA doc. INFCIRC/153 Corrected) was issued in June 1972.
- 42.
IAEA, ‘The Evolution of IAEA Safeguards’, Vienna, November 1998, https://www-pub.iaea.org/MTCD/Publications/PDF/NVS2_web.pdf, p. 14.
- 43.
Bunn 2004, p. 2.
- 44.
IAEA, ‘Safeguards agreements’, https://www.iaea.org/topics/safeguards-agreements (accessed 11 January 2021).
- 45.
IAEA, ‘IAEA By Numbers’, https://www.iaea.org/about/by-the-numbers.
- 46.
IAEA, IAEA Safeguards: Serving Nuclear Non-Proliferation, Vienna, 2015, p. 10. Subsequently, Libya admitted to the IAEA in 2004 that it had imported 2,263 metric tons of uranium ore concentrate from French-controlled mines in Niger in 1978–1981, but had only declared import of 1,000 metric tons. IAEA Director General, ‘Implementation of the NPT Safeguards Agreement of the Socialist People’s Libyan Arab Jamahiriya’, Report to the IAEA Board of Governors, IAEA doc. GOV/2004/33, 28 May 2004, https://fas.org/nuke/guide/libya/iaea0504.pdf, Annex, para 15.
- 47.
IAEA, IAEA Safeguards: Serving Nuclear Non-Proliferation, Vienna, 2015, p. 10. An Additional Protocol is not a free-standing legal instrument. It can only be concluded in complement to a safeguards agreement.
- 48.
Joint Comprehensive Plan of Action (14 July 2015), https://www.europarl.europa.eu/cmsdata/122460/full-text-of-the-iran-nuclear-deal.pdf, endorsed by SC Res 2231 (2015); IAEA, ‘Status List: Conclusion of Safeguards Agreements, Additional Protocols and Small Quantities Protocols (Status as of 18 September 2020)’, Vienna, accessed 1 January 2021, https://www.iaea.org/sites/default/files/20/01/sg-agreements-comprehensive-status.pdf. Iran signed an Additional Protocol to its comprehensive safeguards agreement with the IAEA in 2003. http://www.iaea.org/newscenter/news/2003/iranap20031218.html. Iran committed to proceed with ratification under para 13 of the JCPOA (14 July 2015).
- 49.
IAEA, IAEA Safeguards: Serving Nuclear Non-Proliferation, Vienna, 2015, p. 11.
- 50.
Hill 2021, p. 16. SC Res 1887 (2009), para 15(b), ‘[c]alls upon all States to sign, ratify and implement an additional protocol, which together with comprehensive safeguards agreements constitute essential elements of the IAEA safeguards system’.
- 51.
Action 28 of the 2010 NPT Review Conference Action Plan ‘encourages’ all States Parties to the NPT which have not yet done so to conclude and bring into force an IAEA Additional Protocol.
- 52.
Article 3(1), TPNW.
- 53.
Article 3(2), TPNW.
- 54.
Article 3(1), TPNW.
- 55.
Those that owned, possessed, or controlled nuclear weapons after 8 July 2017. Article 4(1), TPNW.
- 56.
Article 4(1) and (3), TPNW.
- 57.
Ibid.
- 58.
International Court of Justice, North Sea Continental Shelf cases (Germany v. Denmark and Germany v. The Netherlands), Judgment, 20 February 1969, para 73.
- 59.
Though in such a scenario, France might be able to claim the status of persistent objector, as discussed below.
- 60.
- 61.
- 62.
International Court of Justice, Asylum case (Colombia v. Peru), Judgment, 20 November 1950, p. 16.
- 63.
International Court of Justice, Fisheries case (United Kingdom v. Norway), Judgment, 18 December 1951, p. 19.
- 64.
As set out in the International Law Commission report of 2019 on the issue of ‘Peremptory norms of general international law (jus cogens)’, such norms ‘reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable’. ILC, Conclusion 3, Text of the draft conclusions on peremptory norms of general international law (jus cogens), adopted by the Commission on first reading, in UN doc. A/74/10, 2019.
- 65.
Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, International Law Commission, UN doc. A/CN.4/727, 31 January 2019, para 28.
- 66.
ILC Conclusion 14(3), Text of the draft conclusions on peremptory norms of general international law (jus cogens), adopted by the Commission on first reading, in UN doc. A/74/10, 2019, p. 145; see also commentary para 15 on Draft Conclusion 3 at p. 156.
- 67.
Article XV, CTBT.
- 68.
IAEA, ‘The Evolution of IAEA Safeguards’, Vienna, November 1998, p. 3 note 6.
- 69.
UN General Assembly Resolution 50/245; adopted on 10 September 1996 by 158 votes to 3 (Bhutan, India, and Libya), with 5 abstentions (Cuba, Lebanon, Mauritius, Syria, and Tanzania). Of the eight States that did not vote in favour of the adoption of the CTBT, Lebanon and Tanzania have since adhered to the Treaty.
- 70.
SC Res 1172 (1998), adopted unanimously, operative para 1.
- 71.
SC Res 1172 (1998), operative para 3.
- 72.
Nuclear Threat Initiative (NTI), ‘India: Nuclear’, last updated November 2019, https://www.nti.org/learn/countries/india/nuclear/; though see also Squassoni and Armitage 2016.
- 73.
Bhutan, Cuba, Dominica, India, Mauritius, North Korea, Pakistan, Palestine, Saudi Arabia, Somalia, South Sudan, Syria, and Tonga.
- 74.
As of writing, Libya was a signatory to the TPNW but had not ratified it.
- 75.
SC Res. 2375 (2017), adopted unanimously, second preambular para and operative para 2.
- 76.
Department of Energy, ‘Fiscal Year 2018, Stockpile Stewardship and Management Plan’, November 2017, pp. 3–26.
- 77.
‘Trump administration discussed conducting first U.S. nuclear test in decades’, The Washington Post, 22 May 2020, https://www.washingtonpost.com/national-security/trump-administration-discussed-conducting-first-us-nuclear-test-in-decades/2020/05/22/a805c904-9c5b-11ea-b60c-3be060a4f8e1_story.html; and Sonne P (2019) ‘U.S. military intelligence steps up accusation against Russia over nuclear testing’, The Washington Post, 14 July 2019, https://www.washingtonpost.com/world/national-security/us-military-intelligence-steps-up-accusation-against-russia-over-nuclear-testing/2019/06/13/2dadf2e2-8e26-11e9-b162-8f6f41ec3c04_story.html.
- 78.
SC Res 1172 (1998), operative para 7.
- 79.
Oestern 2020, p. 11.
- 80.
International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, dispositif E (majority vote of seven votes to seven, by the President’s casting vote) [added emphasis].
- 81.
Ibid., para 95 [added emphasis].
- 82.
TPNW, tenth preambular para.
- 83.
Comments in plenary on numerous occasions during the Second Session of the Diplomatic Conference in June–July 2017 (author’s notes), and see: Compilation of amendments received from States on the revised draft submitted by the President dated 30 June 2017, UN doc. A/CONF.229/2017/CRP.1/Rev.1.
- 84.
See: Compilation of amendments received from States on the preamble, received as of 22 June 2017 10 p.m.
- 85.
The ILC included ‘The basic rules of international humanitarian law’ in its non-exhaustive list of rules of jus cogens. See Text of the draft conclusions on peremptory norms of general international law (jus cogens), adopted by the Commission on first reading, in UN doc. A/74/10, 2019, Annex, para (d), at p. 147. See also Conclusion 33 of the Conclusions of the ILC Study Group on fragmentation of international law, UN doc. A/CN.4/L.702, 18 July 2006, https://undocs.org/en/A/CN.4/L.702, p. 21; and Report of the ILC Study Group on fragmentation of international law, UN doc. A/CN.4/L.682, 13 April 2006, https://undocs.org/en/A/CN.4/L.682, para 374.
- 86.
See, e.g., International Committee of the Red Cross (ICRC) Customary IHL Rule 1 (‘The Principle of Distinction between Civilians and Combatants’), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1; Rule 7 (‘The Principle of Distinction between Civilian Objects and Military Objectives’), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule7; Rule 14 (‘Proportionality in Attack’), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14; and Rule 71 (‘Weapons That Are by Nature Indiscriminate’), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule71.
- 87.
International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, dispositif F [added emphasis].
- 88.
Ibid., para 98.
- 89.
Ibid., para 99.
- 90.
Ibid., para 103.
- 91.
Remarks by Dr. Christopher Ashley Ford (above, n 7).
- 92.
Ibid.
- 93.
Article 7(1) and 7(2), respectively.
- 94.
For the sake of completeness, the full paragraph is as follows: ‘The TPNW also trips over its own feet by barring a nuclear weapons possessor that joins the treaty from assisting with the safe and effective removal and dismantlement of another country’s nuclear weapons. Article I of the TPNW would thus, in effect, prohibit cooperative efforts to achieve the fundamental purpose of the “Ban” by the only people who might be able to provide such help without this aid becoming itself a proliferation risk. Did the TPNW’s proponents really intend to create an instrument that might prohibit negotiated, cooperative denuclearization efforts such as those the United States is pursuing with the North Korea? One gets the impression that this is just another area in which things just weren’t thought through.’
- 95.
Kurosawa 2020.
- 96.
‘Moving Forward With the CEND Initiative’, Remarks by Dr. Christopher Ashley Ford, Assistant Secretary, Bureau of International Security and Nonproliferation, US Department of State, at the Creating An Environment For Nuclear Disarmament (CEND) Working Group, Wilton Park, United Kingdom, 20 November 2019, https://2017-2021.state.gov/moving-forward-with-the-cend-initiative/index.html.
- 97.
W. Mauldin and M. R. Gordon, ‘State Department Official Fired After Criticizing Trump’, The Wall Street Journal, 7 January 2021, https://www.wsj.com/livecoverage/biden-trump-electoral-college-certification-congress/card/iwDBXBigCvULXTlBBVG2.
- 98.
Arancibia G (2021) ‘Joint Chiefs of Staff: US Capitol Riot Was “Direct Assault” on American Democracy’, Sputnik News, 12 January 2021, https://www.globalsecurity.org/security/library/news/2021/01/sec-210112-sputnik08.htm.
- 99.
Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (8 December 1987), https://www.nti.org/learn/treaties-and-regimes/treaty-between-the-united-states-of-america-and-the-union-of-soviet-socialist-republics-on-the-elimination-of-their-intermediate-range-and-shorter-range-missiles/.
- 100.
Treaty on Open Skies (24 March 1992), http://www.osce.org/library/14127.
- 101.
Mohammed A, Tétrault-Farber G (2021) ‘U.S., Russia extend last major arms control treaty despite disputes’, Reuters, 3 February 2021, https://www.reuters.com/article/us-usa-russia-nuclear/u-s-russia-extend-last-major-arms-control-treaty-despite-disputes-idUSKBN2A323N.
- 102.
Reif and Bugos 2020.
- 103.
‘On the Extension of the New START Treaty with the Russian Federation’, Press Statement by Antony J. Blinken, Secretary of State, 3 February 2021, https://www.state.gov/on-the-extension-of-the-new-start-treaty-with-the-russian-federation/.
- 104.
Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems (26 May 1972), with Protocols of 3 July 1974 and Supplementary Protocol of 28 October 1976, http://www.state.gov/t/avc/trty/101888.htm, U.S. withdrawal on 13 December 2001, effective 13 June 2002.
- 105.
‘Putin says arms race between US, Russia followed Washington’s withdrawal from ABM Treaty’, 2 March 2018, https://tass.com/politics/992402.
- 106.
Reif and Sanders-Zakre 2019.
- 107.
Suciu 2020.
- 108.
Oestern 2020, pp. 288–89.
- 109.
Hoyle B, Evans M (2021) ‘Nuclear war with Russia or China now a very real possibility, warns US admiral’, The Times, 4 February 2021, https://www.thetimes.co.uk/article/nuclear-war-with-russia-or-china-now-a-very-real-possibility-warns-us-admiral-9kqfb9m83.
- 110.
Ibid., p. 289.
- 111.
Hill 2021, p. 4.
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Casey-Maslen, S. (2021). The Impact of the TPNW on the Nuclear Non-Proliferation Regime. In: Black-Branch, J.L., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume VI. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-463-1_15
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