The Treaty to Ban Nuclear Weapons Enters into Force

The United Nations has aspired to the abolition of nuclear weapons since its inception. The first UN General Assembly called for “the prohibition of the use of atomic energy for military purposes and the elimination from national armaments of atomic weapons and of all other major weapons adaptable now or in the future to mass destruction.”

In his 1963 encyclical Pacem in terris, Pope John XXIII declared that the ultimate goal of his call for nuclear disarmament was “to abolish them entirely.” A few months later, U.S. President John F. Kennedy, with the Cuban missile crisis only months behind him, declared that world peace, with nuclear disarmament at its core, is “the necessary rational end of rational men.” In 1968 the Non-Proliferation Treaty (NPT), the result of discussions between Soviet and American experts, initiated by U.S. President Kennedy and Soviet Chairman Nikita Khrushchev was signed. It proposed “the elimination from national arsenals of nuclear weapons and the means of their delivery.”

Finally, in 2017, a United Nations conference, with 122 votes in favor, 1 against and 1 abstention, adopted the Treaty on the Prohibition of Nuclear Weapons (TPNW). The Holy See was the first State Party to sign and ratify this treaty. On January 22 this year, having reached the required 50 ratifications, this “Ban Treaty” entered into force. Two days earlier, at his general audience on January 20, Pope Francis made a direct appeal for support: “I strongly encourage all States and all persons to work with determination to promote the necessary conditions for a world without nuclear weapons, contributing to the advancement of peace and multilateral cooperation, which humanity so badly needs today.”

The new treaty commits State Parties never in any circumstance, to develop, test, produce, or acquire, possess, use, or threaten to use nuclear weapons. However, none of the states that currently possess nuclear weapons adheres to the Treaty.^[1]

Opposition of nuclear powers

Nuclear powers have opposed the treaty since the beginning. As the conference to draft it began in New York in March 2017, U.S. Ambassador to the United Nations Nikki Haley led a protest press conference at UN headquarters. When the drafting conference approved the draft treaty, the NATO Council expressed its dissent in thunderous terms. It declared that the treaty “will not reduce nuclear arsenals, and will neither enhance any country’s security, nor international peace and stability.” It also claimed, incorrectly, that it “undermines the NPT,” and, pushing its protest too far, denied that it could ever evolve into customary international law.

Cracks have already begun to appear in NATO’s opposition to the prohibition treaty. In that same year of 2017, the government of the Netherlands, which had adopted NATO’s position at the conference and voted against the treaty, nevertheless had popular and parliamentary majorities in favor of abolition. In a 2019 report, the UK House of Lords proposed that “TPNW members, nuclear weapons possessors outside of the NPT, and developing countries engage in an informal and open dialogue on an equal level. These “solution-driven approaches,” they advised, “should be welcomed as an opportunity to build bridges and tackle new challenges.” In addition, some UK authorities proposed that, as a step toward Nuclear Zero, Britain’s minimum nuclear deterrent should become a model for other nuclear powers.

Last fall Global Affairs Canada (the Canadian foreign ministry) tempered its opposition to the treaty, announcing, “Canada unequivocally supports global nuclear disarmament.” This statement followed public support for the treaty from the foreign and defense ministers as well as from two former prime ministers, revealing a substantial shift in opinion among Canada’s leaders     . To date, however, the Trudeau government has not gone so far as to commit to the treaty. More recently, the Belgian Parliament urged its government to do so.

Weapons of mass destruction

To overcome the nuclear powers’ current opposition to TPNW, advocates of the treaty are counting on the law’s educational capacity. The disarmament newsletter of the Women’s League for Peace and Freedom, Reaching Critical Will, asserts, “the normative force [of the treaty] is growing every day, establishing customary international law that will over time impact the policies and practices of all governments.” Ramesh Thakur, a former assistant to the UN Secretary General, adds, the Ban Treaty “reorder(s) the envelope of humanitarian laws, norms, practices, and discourse on nuclear weapons.”

Beatrice Fihn, executive director of ICAN (the Nobel Prize-winning International Campaign against Nuclear Weapons) and Suzi Snyder of PAX (a Dutch peace organization) believe that the treaty will be increasingly influential in the current trend toward the adoption of other new arms treaties. They point out that with the agreements on landmines and cluster munitions, initial opposition gave way to regular observance and ultimately acceptance of the ban. They also believe that the loss of reputation for possessing banned weapons will lead to their elimination.

Supporters of the treaty rely on the stigmatization that affects countries that place themselves outside the international consensus over a detested weapon: this could induce compliance with the norm and therefore the signing of the treaty. International law already considers nuclear weapons, along with chemical and biological ones,  weapons of mass destruction (WMDs). International lawyers supported the Ban Treaty (TPNW) because it has filled “a legal gap” in the prohibition of WMDs; while chemical and biological weapons have been banned, the same has not happened with nuclear weapons, the most destructive class of weapons of mass destruction. Perhaps, to remind interlocutors of the catastrophic potential of such weapons, rather than speaking abstractly of nuclear weapons, we should instead speak of “nuclear weapons of mass destruction.”

Welcoming the TPNW’s coming into force, UN Secretary-General António Guterres said he was ready to convene the first review conference of States Parties, scheduled to take place within five years. Indeed, effective implementation of the treaty requires further tweaking. For example, while the nuclear powers adhering to it are required to disarm, the treaty does not specify the concrete requirements. It speaks of an international “authority” and “multiple authorities” that will be tasked with overseeing the disarmament process of states that decide to disarm, but such an authority has not yet been established and the terms of its operations have not been spelled out in detail.  Moreover, the governing council of the IEAE, the International Atomic Energy Agency, of which nuclear-weapon states are members, declined to participate in supervising and monitoring disarmament work undertaken under the treaty .

In anticipation of the first review conference, the international humanitarian lawyers who drafted the TPNW should work with negotiators who specialize in arms control to draft treaty amendments on these vital issues. One possibility would be to have the informal discussions to re-establish the arms control regime, discussions which are already underway, expand to undertake this work to help improve the TPNW.

The NPT and the Ban Treaty

In the Bulletin of Atomic Scientists, Ramesh Thakur argues that the Ban Treaty strengthens the disarmament provisions set forth in Article VI of the NPT, transforming the “commitment to pursue negotiations, into an obligation ‘to pursue in good faith and bring to a conclusion’ such negotiations.” Article VI is actually the point on which in the short-term supporters and opponents of the Ban Treaty are most likely to clash or make progress toward abolition     .

The 2020 NPT Review Conference has been postponed and rescheduled for next August in New York at the United Nations headquarters. By calling for abolition, the NPT pre-empted the TPNW, so that the drafters of the Ban Treaty, despite NATO’s opposition     , regard the ban as furthering the goals and commitments set forth in the NPT. Since both advocates and opponents are members of the NPT, the review conference is a suitable venue for the two sides to meet and discuss the opponents’ allegation that the Ban Treaty weakens the NPT.

The discontent of non-nuclear states now focuses on the NPT because in recent years the nuclear powers have used this treaty to prohibit proliferation without making significant progress toward disarmament. They have exploited the NPT to protect their presumed “legacy rights” to weapons of mass destruction. In return for their support, nuclear-weapon states have also obtained, at NPT review conferences over the past 25 years, repeated concessions to their own initiatives, such as the establishment of a nuclear-weapon-free zone in the Middle East or unilateral cuts in arsenals. But then they failed to implement those programs, so that discontent has grown.

Thakur suggests that if the nuclear-weapon States Parties do not reach agreement on a firm commitment to disarmament next August or in the following months, the non-nuclear-weapon states could exit the NPT, thereby delegitimizing the nuclear-weapon oligarchy. The same tactic is also suggested by pro-TPNW political scientists such as Joelien Pretorius and Tom Sauer.

Therefore, the conference next August in New York represents a fundamental moment. States will also have to show their willingness to build together the future of nuclear disarmament and novel structures of global governance, going beyond the NPT.

DOI: La Civiltà Cattolica, En. Ed. Vol. 5, no. 4 art. 7, 0421: 10.32009/22072446.0421.7

^[1].    On the topic of abolishing nuclear weapons, see: D. Christiansen, “The Church Says ‘No’ to Nuclear Weapons. Moral and Pastoral Implications”, in Civ. Catt. En. May 2018 https://www.laciviltacattolica.com/the-church-says-no-to-nuclear-weapons-pastoral-and-moral-implications; Id., “Time for the Abolition of Nuclear Weapons”, ibid. Dec. 2019, https://www.laciviltacattolica.com/time-for-the-abolition-of-nuclear-arms/