Nuclear Weapon Ban Treaty: Addressing Normative Concerns – Analysis

By Shivani Singh*

Norms are considered a product of behaviour and expectations, thereby playing a vital role in international law and foreign policy. An example of such norm setting was witnessed in the recently adopted Treaty on Prohibition of Nuclear Weapons, 2017, seeking to reflect normative changes that have happened since the NPT was enacted in 1970. The intent of this new treaty is to set the ball rolling for future disarmament negotiations and suggest measures that can be undertaken to envisage a nuclear weapons free world, and the process from a normative point of view was marked both by successes and failures.

The treaty codifies the norms of disarmament into a legally binding instrument, hence indicating a shift towards a ‘new’ normal and tightening the already existing norms based on past experience. An example of this progressive shift is the withdrawal clause in the treaty envisaged in Article 17 (3) which reads that any withdrawal from the treaty “shall only take effect twelve months after the date of the receipt of the notification of withdrawal by the Depositary,” as opposed to the NPT, under which the advance notice period for withdrawal is only 3 months.

This change is based on the experience with North Korea, whose unprecedented withdrawal from the NPT presented 3 problems. First, how can weaponisation be delayed if withdrawal eventuates? Second, how can more time be provided for diplomacy to prevent withdrawal or address underlying grievances? Third, how can it be ensured that technology acquired by the state during its membership of the NPT remains perpetually tied to safeguards, that were the precondition of their sale in the first place, in perpetuity? While the new treaty addressed the first two questions with the twelve month stipulation, it failed to address the third clear problem that the DPRK precedent threw up. This is surprising given that this last question is the crux of the problem at hand.

Another surprise is the inability of the negotiating parties to declare the use of nuclear weapons as a ‘crime against humanity’ which would have normatively overturned the 1996 judgment of the International Court of Justice (ICJ) which held the use of nuclear weapons legal, subject to the principles of proportionality and the laws of war. The question arises again, why was this not done even though the nine nuclear weapon states did not take part in the negotiations and the remaining state parties have the most to gain?

Curiously, those often considered loudest voices of disarmament such as Austria and Japan only referred to the ‘’catastrophic humanitarian consequences’’ of nuclear weapons, carefully avoiding using or pushing for declaring the use of nuclear weapons illegal. The most curious of these was Japan, the only country to have suffered a nuclear strike. Austria, in the 2016 open-ended working group meeting in Geneva, clarified that in the spirit of the humanitarian initiative, a complete ban on nuclear weapons would take into consideration the most important notion of security, that is the security of the people, stating, ‘’The humanitarian initiative looks at the consequences of nuclear weapons on human populations and the risks that are borne by all humanity by the continued existence of these weapons. The consequences would be trans-boundary and potentially global and impact on the security, well-being and survival of humans in nuclear armed States and non-nuclear weapons States alike’’.

Similarly, Japan also stated that ‘’the awareness of the catastrophic humanitarian impact of nuclear weapons fundamentally underpins all nuclear disarmament and non-proliferation approaches and efforts’.’ Similar reports submitted by countries like Canada, Germany, Italy, Latvia, Poland and Spain take cognisance of the ‘humanitarian aspect’ of the problem but at the same time believe that it has to be balanced with strategic, tactical and security considerations.

This hesitation can be seen as emanating from the fact that most of these countries come under the US nuclear umbrella, giving them all the benefits of nuclear deterrence without the negatives associated with the possession of nuclear weapons. Cognisant of this, this powerful core of economically developed and normatively powerful states avoided what could have been the single biggest normative shift – prioritising realpolitik over altruism.

Therefore, looking at the progress so far, it is evident that the goal of universal nuclear disarmament envisaged in the original NPT is still a work in progress. That the new treaty despite bogged down by the security interests of some countries still managed to enact some normative changes is an achievement in itself. However, it does not go far enough. Possibly institutionalising the negotiation of a new NPT-style treaty every ten year, would accelerate the normative changes required and as such this new treaty must be seen as a baby step in the right direction.

* Shivani Singh
Research Intern, NSP, IPCS