A remarkable thing happened on October 24, 2020. It is a date that should go down in history. And yet, as far as I can tell there was barely a mention by the major news media.
What is that momentous thing?
Nuclear weapons are now officially illegal – that’s what.
At least they will be on 22 January 2021 when the TPNW enters into force and becomes binding international law.
The TPNW is the UN Treaty on the Prohibition of Nuclear Weapons and it just reached the 50 ratifications needed to enter into force in 90 days
Wouldn’t you think the world would be celebrating? Wouldn’t you think the International Campaign to Abolish Nuclear weapons (ICAN) would be hailed as heroes, even nominated for another Nobel Peace Prize?
Instead, the Treaty has been met with silence, apparent indifference or cynicism, and by some with overt hostility.
The cynics argue that the Treaty is meaningless and it won’t change anything because the nine nuclear powers were “excluded”.
In fact, they excluded themselves. The meetings and negotiations were open to all UN member and observer states but not one of the nuclear-armed states chose to attend.
So, does that make the Treaty meaningless? Certainly not. It will still serve to delegitimise nuclear weapons and that’s its main purpose. Nuclear weapons are now in the same unacceptable legal category as other weapons of mass destruction such as biological and chemical weapons.
Critics say the Treaty lacks validity because it wasn’t agreed to by consensus. But the Netherlands (which hosts NATO nuclear weapons) blocked consensus. This forced the TPNW text to go to the vote. The result: 122 to 1 in favour with 1 abstention (Singapore).
Voting is nothing new or outlandish, is it? Anyway, the two-thirds majority voting procedure followed is the standard for multilateral treaty negotiations, as per the Vienna Convention on the Law of Treaties.
The Nuclear Non-proliferation Treaty (NPT) and the Comprehensive Test Ban Treaty (CTBT) were both adopted through voting at the UN General Assembly despite the preference for reaching agreement by consensus.
In negotiations that require consensus with no option to vote, a single state can veto a text every other state agrees upon. If the negotiators had waited for consensus we can only guess what a watered down version of the Treaty would have looked like. Very likely it would then really have been meaningless.
Some say the negotiations should have taken place within the framework of the Conference on Disarmament. It is true that forum and its predecessors have delivered important agreements such as the Non Proliferation Treaty (NPT), the Biological Weapons Convention (BWC), the Chemical Weapons Convention (CWC) and the Comprehensive Test Ban Treaty (CTBT). But the Conference on Disarmament is limited to 65 states and has been deadlocked for the last twenty years. That’s probably because it operates by consensus. Given the resistance to the TPNW by the nuclear powers and those under their nuclear umbrella, it is unlikely the initiating meetings would have happened at all, let alone the treaty negotiations themselves.
Another criticism is the lack of strong verification rules. But the TPNW does provide for both non-proliferation safeguards and disarmament verification.
Parties to the TPNW must have or adopt a safeguards agreement with the International Atomic Energy Agency (IAEA). The 132 states that have accepted the IAEA Additional Protocol (AP) that allows IAEA inspection of undeclared nuclear facilities will be legally committed to continue that agreement. And the TPNW also specifically adopts the safeguards of the Non Proliferation Treaty (NPT) plus extra safeguards in a legally binding treaty.
Regarding disarmament verification, Article 4 (1) of the Treaty stipulates that nuclear-armed states that claim to have disarmed before joining the TPNW must cooperate with an institution mandated by the TPNW state parties to verify that it really has eliminated its nuclear-weapons program.
Article 4 (2) stipulates that nuclear-armed states that join the TPNW while possessing nuclear weapons must immediately remove their nuclear weapons from operational status, destroy their weapons as soon as possible but not later than a deadline to be determined by the first meeting of States Parties and lastly, eliminate their entire nuclear-weapons program, including the elimination or irreversible conversion of all nuclear-weapons-related facilities.
That sounds like some pretty stringent safeguards and disarmament provisions to me. But, of course, without participation by the nuclear-armed states it was not realistic to negotiate the finer verification details just yet.
Some say the TPNW fails to make up for the weaker aspects of the Nuclear Non-proliferation Treaty (NPT) such as its failure to prohibit its parties from preparing to produce nuclear weapons including the transfer of parts, materials and technology. But it seems to me, the TPNW goes a long way towards doing just that.
For example parties to the TPNW must not develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices; they must not receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly; and they must not seek or receive any assistance in any way, from anyone to engage in any activity prohibited to a State Party under the Treaty.
Of course, then there is the predictable concern about upsetting the strategic balance by undermining the legitimacy of the nuclear deterrence doctrine that adherents claim has kept us safe for more than seven decades.
But we are not safe. We never can be while the spectre of nuclear annihilation hangs over the head of every living being on the planet.
Not one of the nuclear powers has taken meaningful steps to phase out nuclear weapons with the aim to ultimately eliminate them altogether as required by the Non Proliferation Treaty (NPT).
NATO member states, particularly those hosting nuclear weapons and states like Australia, under the “west’s” nuclear umbrella, have also shown little interest in nuclear disarmament.
The deterrence doctrine is nothing but an excuse not to disarm. Disarmament will simply not happen while nuclear weapons are considered acceptable, useful and legitimate.
The Treaty on the Prohibition of Nuclear Weapons (TPNW) seeks to change that. Will it really make a difference? Will it have any affect on international law?
Only time will tell but one thing is certain: the longer nuclear weapons continue to exist, the greater the chance that we won’t.
It is not deterrence that has saved us so far, just incredibly good luck.