The Nuclear Ban Is Here: Now What? – OpEd

By Alyn Ware*

January 22 was a historic day for the global campaign to eliminate nuclear weapons, with the entry-into-force of the Treaty on the Prohibition of Nuclear Weapons (TPNW or ‘Ban Treaty’). According to promoters of the TPNW, nuclear weapons “are now illegal under international law”.

This is fabulous news for the world. Since the birth of the nuclear age and until January 22, humanity lived under the threat of nuclear war, the destructiveness of which would dwarf the horror of World War I and World War II, and possibly destroy civilization as we know it. Now that nuclear weapons are illegal, we can celebrate the end of the nuclear weapons era, take “nuclear abolition” off our to-do list, and turn our attention to other important issues like stabilizing the climate and more effectively addressing the pandemic.

Or can we? Is it really true that nuclear weapons are now illegal? And before January 22, were they legal? And what weight does law have on the policies of those countries possessing nuclear weapons? The truth is much more complicated than the slogans imply.

Firstly, does the TPNW make nuclear weapons illegal? The answer is yes, but only for those countries that join the treaty. 51 countries have joined, all of them are non-nuclear states. The countries possessing nuclear weapons, and those engaged in nuclear deterrence security agreements like NATO, have all said that they won’t join the treaty.

So, in effect the treaty is a little like if the vegetarians of the world adopted a treaty to ban meat-eating, in order to help reduce carbon emissions, deforestation and environmental pollution and improve the food supply for humanity. All very well and something this author would support as a vegetarian. But if the meat producers and eaters refuse to join, it won’t have much impact on them. It certainly does not make meat-eating illegal under international law.

But the second question is more interesting and possibly more useful for the global nuclear disarmament campaign. Were nuclear weapons legal before January 22? The answer is – hardly. For the non-nuclear States, the possession of nuclear weapons was already prohibited under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

For the nuclear-armed states, the possession of nuclear weapons was not specifically prohibited, but the threat or use of nuclear weapons was generally prohibited under international humanitarian law and international human rights law – and was affirmed as such by the International Court of Justice (ICJ) in 1996 and the UN Human Rights Committee in 2018. In addition, both the ICJ and the Human Rights Committee affirmed that there is a universal obligation to achieve the complete elimination of nuclear weapons under strict and effective international control.

So, if the new Treaty on the Prohibition of Nuclear Weapons does not “make nuclear weapons illegal under international law”, can it have a positive impact on nuclear disarmament? And the answer to that is – definitely yes in three key ways.

Firstly, the adoption of TPNW has made a lot of noise around the world. With over 120 countries supporting it, and 51 now having ratified, it makes a strong statement to the nuclear-armed States that the nuclear-armed States are sick-and-tired of waiting for progress on nuclear disarmament, and so are starting to take action themselves.

This could be used to generate momentum in the nuclear-armed States for progress on concrete and meaningful disarmament measures such as ending the production of new nuclear weapons, cutting nuclear weapons stockpiles, adopting policies to never to initiate nuclear war by launching nuclear weapons first (no-first-use policies), and committing to work with the other nuclear-armed states to achieve a safe and secure nuclear-weapon-free world within a specified timeframe.

The election of a new US President sympathetic to these measures, and a Democratic Party-led Congress that could support the new President, gives cause for some optimism that progress is possible – but the continuing conflicts between the nuclear-armed States indicate that none of this will be easy.

Secondly, the TPNW commits states parties to prohibit the possession, production, deployment, testing, use and threat of use of nuclear weapons in their territories. The nuclear-armed States transit their nuclear weapons through the airspace and territorial waters of some of these countries.

If these States parties to the TPNW are brave enough to fully implement the treaty by prohibiting the transit of nuclear weapons, this would have a very significant political and legal impact on the nuclear-armed States.

This was demonstrated, for example, when New Zealand banned the transit of nuclear weapons in 1987 and incurred considerable wrath from nuclear-armed states that had been transiting nuclear weapons there (France, the UK and the USA), but gained considerable respect from non-nuclear countries around the world, even winning themselves a non-permanent seat on the UN Security Council because of this.

Thirdly, the TPNW also makes it illegal for states parties to “Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty”.

Many of the states which have joined the TPNW maintain government-managed funds such as sovereign wealth funds, public employee pension funds, national pension funds and public trust funds which invest in the stock market, including in corporations involved in the manufacture of nuclear weapons and/or their dedicated delivery systems.

Some also have national banks and other state-managed financial institutions which invest in the nuclear weapons industry. Such investments are assisting the production of nuclear weapons. Under the TPNW, they should end such investments.

“Money is what makes the world go around…” And at the moment, the nuclear arms race is being fuelled by colossal nuclear weapons budgets in the nuclear-armed States and significant financial investments globally. It was a global divestment campaign against South Africa that helped end apartheid.

A global nuclear weapons divestment campaign, led by States parties to the TPNW, could reverse the financial incentives for the nuclear arms race and give powerful support to political actors (legislators, financial institutions, civil society) in the nuclear-armed States who are trying to reign in the nuclear weapons budgets and advance nuclear disarmament.

Some countries including Lichtenstein, New Zealand, Norway and Switzerland, had already taken nuclear weapons divestment action prior to the TPNW (indeed Norway and Switzerland are not even members of the TPNW). To date, the TPNW has not led to any other countries following suit, because most attention on the TPNW has been on getting more states to sign and ratify, rather than on adoption of effective national policies to implement the treaty.

However, this issue could take prominence at the first Conference of States Parties to the TPNW, if civil society makes it a priority. Move the Nuclear Weapons Money, a global campaign pushing this is starting to gain traction. 

If states parties to the TPNW and civil society supporters focus on the above three processes, significant progress could be made on nuclear disarmament in the near future, paving the way for comprehensive prohibition and elimination of nuclear weapons at the very latest by 2045, the 100th anniversary of the United Nations.

States Parties and TPNW supporters should, however, avoid the pitfall of focusing their primary attention on trying to move the nuclear-armed States to join the TPNW. All but one of the nuclear-armed states have indicated an openness to join a multilateral nuclear disarmament agreement such as a nuclear weapons convention or a similar package of agreements (as China, France, Russia, UK and USA agreed in the 2010 Non-Proliferation Treaty Review Conference Final Document and India, Pakistan and North Korea have supported in UN Resolutions).

However, none of them supports the option of unilaterally giving up nuclear weapons to join the TPNW. So, pushing this option at this point in time is pushing at a closed and locked door, while there are partially open doors adjacent.

A final important aspect of the TPNW is its attention to victim assistance and environmental remediation with respect to the testing or use of nuclear weapons within the territories of States Parties. This is important as the 2000 plus nuclear test detonations undertaken by nuclear-armed States have caused catastrophic health and environmental effects – and these need to be rectified.

However, the problem with the TPNW is that it does not establish the responsibility correctly. Responsibility should rest on those governments that conducted the tests, not on those governments of territories and people that have been impacted by the tests.

In some cases, nuclear tests were conducted by nuclear-armed States in territories that are now independent countries for example Russia testing in Kazakhstan, France testing in Algeria and the USA testing in the Marshall Islands. In other cases, nuclear-armed countries have tested close to other countries with severe impacts on them, such as France testing in the Pacific and China testing at Lop Nor near the borders with Kazakhstan and Kyrgyzstan.

Despite this, the inclusion of victim assistance and environmental remediation in the TPNW gives voice and standing to those impacted by nuclear weapons and to the environment. This can assist to advance the human rights of people impacted and environmental rights.

Indeed, following the adoption of the TPNW and the 2018 declaration of the UN Human Rights Committee, campaigners are engaging with the UN Human Rights bodies to review countries’ policies and practices relating to nuclear disarmament and the impact of nuclear weapons production, testing and use. This can only serve to strengthen the nuclear disarmament movement.

*The author is Director of the World Future Council Peace and Disarmament Program. He is also the International Representative of the Aotearoa Lawyers for Peace.