Sculpture showing Saint George killing the dragon. The dragon is made from fragments of the Soviet SS-20 and the United States’ Pershing nuclear missiles. Photo credit: UN Photo / Milton Grant NEW YORK, November 2 (IPS) – The Nuclear Weapons Prohibition Treaty (TPNW) will become binding on participating states on January 22, 2021. The entry into force was triggered on October 24th, the date on the 75th anniversary of the United Nations when Honduras becomes the 50th state to ratify the TPNW and hit the threshold set in the treaty.
This is a signal output by the 122 non-nuclear-armed states that negotiated and passed in 2017 together with the International Committee of the Red Cross (ICRC), which gave expert advice, and the International Campaign for the TPNW Abolition of Nuclear Weapons (ICAN), a civil society initiative who received the 2017 Nobel Peace Prize.
Together, the negotiating states, the ICRC and the IKAN took responsibility for creating a path to the global elimination of nuclear weapons, essentially because the most powerful states in the world – all armed with nuclear weapons – do not.
In a statement on October 24, UN Secretary-General António Guterres said that the entry into force of the TPNW “marks the culmination of a global movement to raise awareness of the disastrous humanitarian consequences of the use of nuclear weapons. It is a significant commitment to complete eradication of nuclear weapons, which continues to be the United Nations’ top priority for disarmament. ”
The core provisions of the TPNW prohibit the development, testing, possession and threat or use of nuclear weapons. The treaty reflects the rise of “humanitarian disarmament” and also provides support for victims of nuclear testing and use, and for the environmental rehabilitation of areas affected by testing and use.
The preamble also states that “the catastrophic consequences of nuclear weapons cannot be adequately addressed, cross national borders, have serious effects on human survival, the environment, socio-economic development, the global economy, food security and the health of present and future generations to have”. and have a disproportionate impact on women and girls, including as a result of ionizing radiation. ”
The preamble also states: “A waste of economic and human resources on programs for the production, maintenance and modernization of nuclear weapons.”
The TPNW and the Nuclear Non-Proliferation Treaty (NVV)
In assessing the potential importance of the TPNW, it is important to understand how it strengthens and builds on existing international law, particularly the obligations set out in the 1970 NPT and those analyzed in a 1996 opinion by the International Court of Justice .
The NPT has 191 signatory states, making it one of the most widespread international agreements. Five contracting states (China, France, Russia, United Kingdom, United States) have nuclear weapons pending their elimination under Article VI of the treaty.
All other NPV members are obliged not to acquire nuclear weapons, subject to the security measures monitored by the International Atomic Energy Agency (IAEA).
Likewise, members of the TPNW are required not to acquire nuclear weapons that are subject to the IAEA’s protection regulations, and the importance of the NPT for international peace and security is recognized in the preamble of the TPNW.
The TPNW, however, goes further than the NVV: Every member of the TPNW is prohibited from “moving” a state to use or threaten nuclear weapons in its name. TPNW contracting states are therefore prohibited from participating in alliance agreements with nuclear-armed states in which nuclear weapons may be used on their behalf or in any other way or under other circumstances to request the use of nuclear weapons on their behalf or to cooperate.
In contrast, 30 members of the NPT belong to the North Atlantic Treaty Organization (NATO) or other alliances in which US nuclear weapons are explicitly part of the defense stance. US nuclear weapons are even stationed on the territory of five NATO countries, a practice expressly prohibited by the TPNW.
So far, no member of a nuclear alliance has signed or ratified the TPNW, nor has any of the nine nuclear-armed states (the five nuclear-armed states of the NPT plus India, Israel, North Korea and Pakistan).
The TPNW and the International Court of Justice
In 1996 the International Court of Justice (ICJ) issued an opinion on the legitimacy of the threat or use of nuclear weapons, requested by the General Assembly of the United Nations.
Like the TPNW, the statement resulted from a large collaboration between states – mainly from the Non-Aligned Movement (NAM), a very large group of mainly global southern states – and civil society in the form of the World Court Project, a coalition of over 500 groups. The Nuclear Policy Lawyers Committee was the head of the World Court Project.
The Court found that the threat or use of nuclear weapons “in general” violates international humanitarian law, which prohibits indiscriminate harm and suffering in warfare.
The Court declined to assess the legality of the use of low-yield nuclear weapons in remote areas and of the use of nuclear weapons as reprisals against a nuclear attack or when the survival of a state is threatened.
While the Court’s opinion was not final, it is fair to say that, under all circumstances, the focus of its argument has been on illegality.
The opinion stimulated subsequent in-depth examination of the issue, as well as initiatives that imply or categorically consider the use of nuclear weapons to be illegal, including a 2011 resolution of the International Red Cross and Red Crescent Movement and the Vancouver Civil Society Declaration of 2011.
The TPNW prohibits any threat to or use of nuclear weapons by a state party. In addition, the preamble contains rules and principles of international humanitarian law which it states apply to all states and “believe” that “any” use of nuclear weapons violates this law.
The view expressed in the TPNW thus goes beyond the finding of the International Court of Justice on general illegality and excludes its use under all circumstances. The TPNW is at least an important contribution to the ongoing process of stigmatizing and delegitimizing nuclear weapons.
On its own initiative, the International Court of Justice also undertook an analysis of a question which it was not asked, the nature of the nuclear disarmament obligation under Article VI of the NPT and other international law.
In a unanimous conclusion, cited in the preamble of the TPNW, the Court found that “there is an obligation to negotiate in good faith that will result in nuclear disarmament in all its aspects under strict and effective international scrutiny” .
Although the Court has not specifically stated this, its rationale strongly implies that the obligation is universal and extends to those nuclear-weapon states that are not parties to the NPT.
In an annual resolution on the opinion of the International Court of Justice (51/45 M), first adopted in 1996, the General Assembly of the United Nations called on all states to negotiate a comprehensive convention on the disposal of nuclear weapons. The Chemical Weapons Convention and a draft civil society would have been the starting point for such an agreement.
The western nuclear weapon states and Russia showed no interest. The TPNW, championed by non-nuclear-weapon states, was a response to this stalemate. It provides a framework, but not detailed provisions, for an elimination process.
The reaction of the nuclear weapon states of the NPT
With the exception of China, the nuclear weapon states of the NPT continue to speak out firmly against the TPNW and implausibly claim that this will not affect the development of international law that goes beyond the obligations of the parties to the TPNW.
A far better position would be to welcome the TPNW as the foundation of the NPT and other international laws and as a powerful declaration of the humanitarian and legal principles that should guide the abolition of nuclear weapons.
Above all, all nuclear-armed states must intensify their currently weak efforts to comply with the disarmament obligation and participate in the creation of a world free of nuclear weapons.
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