Abstract
The adoption of the Treaty on the Prohibition of Nuclear Weapons on 7 July 2017 (with a vote of 122-1-1, in which no nuclear-armed State participated) may be understood on the background of existing failures to implement disarmament obligations under the 1968 Nuclear Non-Proliferation Treaty (NPT); the lack of universality of the NPT; and increasing concerns on the humanitarian consequences of nuclear weapons that unfolded over the past years. While it may be still too early for a lasting assessment whether the new Treaty may ultimately contribute to reaching the goal of a world without nuclear weapons and whether it has the potential to gain global acceptance over time, a comprehensive evaluation of existing legal controversies, certain textual deficiencies of the new Treaty, and its foreseeable impact on international security is both necessary and timely. International lawyers have an important contribution to make in this regard.
Former Director International Agreements & Policy, Federal Ministry of Defence, Germany; Member of the Advisory Board of the Amsterdam Center for International Law (ACIL); Rapporteur of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law; Honorary President, International Society for Military Law and the Law of War.
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Notes
- 1.
Treaty on the Prohibition of Nuclear Weapons, UN Doc A/CONF.229/2017/8 (7 July 2017), https://www.un.org/disarmament/ptnw/; for conference documents https://www.un.org/disarmament/ptnw/documents.html and https://www.un.org/disarmament/ptnw/statements.html; for reports on the conference see Nuclear Ban Daily (2017).
- 2.
See UNGA Res. 1 (I) of 24 January 1946; UNGA Res. 192 (III) of 19 November 1948.
- 3.
Mukhatzhanova 2017.
- 4.
See voting results, at https://www.un.org/disarmament/ptnw/. To fully understand the complexity of the situation, it should be noted that the aggregate population of the known nuclear-armed States (both NPT recognized and other) are around half of the global total, and States seeking their security under the umbrella of nuclear-weapon States account for a significant further population, notwithstanding critical voices within these populations. See Quinlan 2009, at 80.
- 5.
See the Swiss Delegation, explanation of vote, at https://www.un.org/disarmament/ptnw/. For further support of this expectation, see Rietiker 2017a.
- 6.
Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968), 729 UNTS 161. The obligations recognised in Article VI have three objectives: the cessation of the nuclear arms race at an early date; nuclear disarmament; and general and complete disarmament. Each of these objectives requires negotiations to be pursued in good faith and implementation measures under strict and effective international control.—Approximately 14,935 tactical and strategic nuclear warheads still exist today, of which about 4,150 are deployed with operational forces and nearly 1,800 are kept in a state of high operational alert; the USA have produced both HEU and plutonium for use in their nuclear weapons, India and Israel have produced mainly plutonium, Pakistan mainly HEU with increasing ability to produce plutonium, the DPRK plutonium and perhaps HEU as well, see Kile and Kristensen 2017. See also Hiroshima Report 2017.
- 7.
The NPT is in force now for 191 States, see http://disarmament.un.org/treaties/t/npt. The Democratic Republic of Korea has withdrawn from the NPT; India, Israel, and Pakistan have never become Parties.
- 8.
See conferences and further activities on the humanitarian impact of nuclear weapons, https://www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/.
- 9.
See Sanger et al. 2017, who also mentioned that there was already talk in Australia, Myanmar, Taiwan and Vietnam about whether it makes sense to remain nuclear-free if others arm themselves.
- 10.
Rühle 2017.
- 11.
- 12.
- 13.
Working towards the elimination of nuclear weapons, Document prepared by the International Committee of the Red Cross in consultation with the International Federation of Red Cross and Red Crescent Societies and National Red Cross and Red Crescent Societies (Antalya, 11 November 2017, CD/17/R4).
- 14.
Appeal to States, global leaders and citizens by Mr Peter Maurer, President of the International Committee of the Red Cross (23 April 2018), https://www.icrc.org/en/document/nuclear-weapons-averting-global-catastrophe?utm_source=ICRC+Law+%26+Policy+Forum+Contacts&utm_campaign=931d522a94-EMAIL_CAMPAIGN_2018_04_26&utm_medium=email&utm_term=0_8eeeebc66b-931d522a94-79035581&mc_cid=931d522a94&mc_eid=cd03e80d49.
- 15.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 226.
- 16.
- 17.
ICJ, Ibid., para 48. Hayashi 2014, at 40, has called the use of the word ‘this’ as ‘unhelpfully imprecise’, as it was unclear whether ‘this’ referred to the policy of deterrence, to intention simpliciter or to credible intention, thus leaving it open, whether only effective deterrence policies or all deterrence policies constitute threats. It is suggested here that the Court, taking the credibility of nuclear deterrence as a starting point, clearly pronounced on the lawfulness of the action (‘a “threat” contrary to Article 2, paragraph 4’), considering that ‘[p]ossession of nuclear weapons may indeed justify an inference of preparedness to use them’.
- 18.
ICJ, ibid., para 66.
- 19.
ICJ, ibid., para 67.
- 20.
ICJ, ibid., para 105(2) E, see also paras 95–97.
- 21.
Other Judges of the Court did pronounce on the issue in their dissenting and separate opinions appended to the decision, revealing a considerable disagreement on whether nuclear deterrence is a mere policy with ‘no legal significance from the standpoint of the formulation of a customary rule’, a policy which ‘should be an object of regulation by law, no vice versa’ (Judge Shi), or rather an accepted practice ‘legitimised by international law’ (Judge Oda, substantially supported by Vice-President Schwebel and Judges Higgins, Ferrari Bravo, and Fleischhauer). No final position was taken as to the legality of nuclear deterrence, yet Judge Weeramantry argued that ‘[i]f an act is wrongful, the threat to commit it and, more particularly, a publicly announced threat, must also be wrongful’.
- 22.
- 23.
- 24.
1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), 1125 UNTS 3.
- 25.
See e.g. UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004), 6.17; Department of Defense Law of War Manual (Washington D.C., 2015, updated 2016), 6.18.3.
- 26.
- 27.
See Swedish Delegation, explanation of vote (7 July 2017), at https://www.un.org/disarmament/ptnw/: ‘Sweden does not subscribe to the language in p. 10 which aims at describing international law as it stands today. Sweden maintains the view taken by the International Court of Justice in the Nuclear Weapons Advisory Opinion 1996 namely, that the threat or use of nuclear weapons would generally [my emphasis] be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law’.
- 28.
U.S. Mission to the United Nations (7 July 2017), Joint Press Statement From the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear Weapons, https://usun.state.gov/remarks/7892.
- 29.
North Atlantic Council Statement of 20 September 2017, https://www.nato.int/cps/en/natohq/news_146954.htm. The Netherlands, as the only NATO Member State participating in the negotiations on the Nuclear Weapons Prohibition Treaty, given its role as Chair of the upcoming 2020 NPT Review Conference, has also emphasised in its explanation of vote, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/07/Netherlands-EoV-Nuclear-Ban-Treaty.pdf, that Article 1 is incompatible with commitments as a NATO State.
- 30.
Interview by Mr. Mikhail Ulyanov, Director of the Department for Non-Proliferation and Arms Control of the Russian Foreign Ministry (12 September 2017), https://sputniknews.com/politics/201709121057334878-nuclear-weapons-ban-treaty-contradicts-interests/: ‘It [the TPNW] contradicts Russia’s national interests and our vision of how to move toward nuclear disarmament. We have always confirmed that we share the goal of creating a nuclear-free world, joined a number of politically binding declarations on this matter, but we have repeatedly emphasized that this is a long-term goal, the way to which should be phased, and that the work in this direction should be pursued in terms of strengthening strategic stability and taking into account the national security interests of all countries, including, of course, Russia.’
- 31.
Nuclear ban treaty doesn’t contribute to customary international law: India, The Wire (18 July 2017), https://thewire.in/159057/nuclear-ban-treaty-customary-law/?mkt_tok=.
- 32.
But see the statement on behalf of the Chinese Ministry of Foreign Affairs (20 March 2017), http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1447146.shtml: ‘whether we show up at the negotiating table or not, there is no change to China’s position on supporting a final comprehensive ban on and total destruction of nuclear weapons. China would like to remain in touch with relevant parties and make joint efforts for the realization of a nuclear-free world’.
- 33.
See Wang 2017.
- 34.
See for many others, Burroughs 2013.
- 35.
On 7 July 2018, one year after the TPNW has been adopted, 59 States (including Austria, Brazil, Chile, Indonesia, Mexico, New Zealand, Nigeria, the Philippines and South Africa) have signed, and 11 States among them have ratified.
- 36.
See above (n 5).
- 37.
Trezza 2017.
- 38.
von Baeckmann et al. 1995, 48.
- 39.
Statute of the International Atomic Energy Agency (IAEA Statute, 26 October 1956), 276 UNTS 4, amended 1963, 1973, 1989, and 1999, https://www.iaea.org/about/about-statute.
- 40.
Special acknowledgement is expressed to Dr. Seth Hoedl for his professional advice on these issues.
- 41.
See Kile and Kristensen 2017.
- 42.
IAEA, The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, INFCIRC/153 (Corr.), June 1972, http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc153.pdf.
- 43.
IAEA, Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards, INFCIRC/540 (Corr.), September 1997, http://www.iaea.org/Publications/Documents/Infcircs/1997/infcirc540c.pdf. See SC Res 1887 (2009), para 15 b.
- 44.
See Explanation of Vote by the Swedish Delegation, declaring its disappointment ‘that it was not possible to have the Additional Protocol, INFCIRC 540, as the standard of verification of this treaty. We believe that would have strengthened the credibility of the treaty and allowed for sufficient verifications of states parties’ compliance with key elements of the general obligation. For further discussion, see Carlson 2017a, b.
- 45.
See http://www.nti.org/about/projects/international-partnership-nuclear-disarmament-verification/; Hiroshima Report 2017, p. 58.
- 46.
Comprehensive Nuclear-Test-Ban Treaty (CTBT), adopted by General Assembly Resolution 50/245 (10 September 1996), 35 ILM 1439, http://www.ctbto.org/fileadmin/content/treaty/treaty_text.pdf.
- 47.
See http://www.ctbto.org/; Bauer and O’Reilly 2016; Mackby 2016.
- 48.
Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), UN-Doc A/56/10 (2001).
- 49.
See Explanation of Vote by the Swedish Delegation: ‘For Sweden’s part, as I assume for many others, the treaty and its relation to civilian nuclear industry, trade, research including nuclear defence research for peaceful purposes, as well as broader security and defence policy interests will be subject to consideration by the government.’
- 50.
See Burroughs 2017.
- 51.
See Report of the Open-ended Working Group taking forward multilateral nuclear disarmament negotiations, UN Doc A/71/371 (1 September 2016), at https://www.un.org/disarmament/ptnw/.
- 52.
See U.S. Nuclear Posture Review 2018, https://www.defense.gov/News/Special-Reports/0218_npr/; Presidential Address to the Federal Assembly of the Russian Federation (1 March 2018), http://en.kremlin.ru/events/president/news/56957.
- 53.
G Edwards, quoted in Kilkenny 2017.
- 54.
UNGARES 72/58 (4 December 2017) ‘Follow-up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, preambular para 16.
- 55.
UNGARES 72/50 (12 December 2017) ‘United action with renewed determination towards the total elimination of nuclear weapons’, was emphasising the central importance of the NPT for this goal.
- 56.
UNGARES 72/59 (4 December 2017) ‘Convention on the Prohibition of the Use of Nuclear Weapons’, see UN-Doc A/C.1/72/L.47 (13 October 2017), co-sponsored by Bhutan, Cuba, India, Kenya, Lao People’s Democratic Republic, Mauritius, Myanmar, Samoa and Viet Nam; supported by China, Pakistan, Brazil, Chile, Egypt, Indonesia, Iran, Kazakhstan, Mexico, Nigeria, the Philippines, Saudi Arabia, South Africa, and UAE, with Russia and Japan abstaining, and France, UK, U.S., Israel, Australia, Austria, Belgium, Canada, Germany, South Korea, Netherlands, New Zealand, Norway, Poland, Sweden, Switzerland and Turkey voting against.
- 57.
Model Nuclear Weapons Convention, UN-Doc A/62/650 (18 January 2008), http://inesap.org/sites/default/files/inesap_old/mNWC_2007_Unversion_English_N0821377.pdf.
- 58.
Perkovich 2017, 5–6.
- 59.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 (General Assembly Opinion), ICJ Reports (1996), 226, 35 ILM (1996), 809, para 99.
- 60.
Perkovich 2017, 16.
- 61.
Mukhatzhanova 2017.
- 62.
See above (n 3).
- 63.
- 64.
Statute of the International Atomic Energy Agency (26 October 1956), 276 UNTS 4, amended 1963, 1973, 1989, and 1999), https://www.iaea.org/about/about-statute.
- 65.
See SC Res 2375 (2017), 2397 (2017) and 2407 (2018); Joint Statement of President Donald J. Trump of the United States of America and Chairman Kim Jong Un of the Democratic People’s Republic of Korea at the Singapore Summit (12 June 2018), https://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit/.
- 66.
NPT, preambular para 11.
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Fleck, D. (2019). The Treaty on the Prohibition of Nuclear Weapons: Challenges for International Law and Security. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_18
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