The first United Nations treaty ever to ban nuclear weapons was approved by 122 of the 192 UN states on Friday 7th July 2017. A product of months of negotiations, the 10 page document entitled ‘The Treaty on the Prohibition of Nuclear Weapons’ was formally adopted at the UN headquarters in New York. The draft text expressly prohibits developing, testing, manufacturing, possessing, threatening and using nuclear weapons or other nuclear explosive devices. It will be open for signature from September 20th and requires ratification by 50 countries to come into force. The nine nuclear armed countries – US, Russia, China, France, UK, India, Pakistan, Israel and North Korea – boycotted the negotiations, whilst at the vote only the Netherlands voted against the treaty and Singapore abstained. The treaty raises questions of its viability due to recent nuclear threats between states, and what effects it will have on the international legal system.
The results of the vote were announced to loud applause by Elayne Whyte Gomez, the President of the UN conference negotiating the treaty. In a UN press conference, Whyte Gomez stated that “we have managed to sow the first seeds of a world free of nuclear weapons”. She said that “we (are)…saying to our children that, yes, it is possible to inherit a world free from nuclear weapons”. Anti-nuclear weapons advocacy groups have called the treaty a victory, with Beatrice Fihn, the executive director of the International Campaign to Abolish Nuclear Weapons, stating “this treaty is a strong categorical prohibition of nuclear weapons and is really rooted in humanitarian law”.
Opposing sentiments were expressed by delegates of the US, UK and France as they announced that they “do not intend to sign, ratify or ever become party to it”. They contended that the “initiative clearly disregards the realities of the international security environment” and “accession to the ban treaty is incompatible with the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over 70 years”. These contrasting positions reflect the tensions between nuclear possessing and non-possessing states over the legality of such weapons in international law.
The new treaty has come about from the combined efforts of United Nations agencies, the International Committee of the Red Cross, and the International Campaign to Abolish Nuclear Weapons. Since the 1945 US atomic bombing of Hiroshima and Nagasaki, advocates have called for the prohibition of nuclear weapons but have faced difficulties with developments of the nuclear arms race and states’ use of the security strategy of deterrence. Deterrence theory posits that to prevent a nuclear attack it is necessary to communicate the promise of retaliation assured destruction of the aggressor. The newest treaty marks a clear message of the frustration by non-nuclear states over lack of progress towards disarmament and continued threats of the use of nuclear weapons.
The current system is regulated by the Non-Proliferation Treaty (NPT) of 1968 which contains only partial prohibitions. It was created to prevent the spreading of nuclear weapons from the original five nuclear powers of the US, Russia, Britain, France and China. The NPT requires non-nuclear states to refrain from obtaining nuclear weapons in return for the nuclear states committing to disarmament and focusing on developing peaceful nuclear energy technologies. The NPT, however, has proven ineffective in implementing complete disarmament as the five main nuclear armed states currently have a stockpile of about 15,000 nuclear warheads. The new treaty will hopefully reinforce a more effective commitment to disarmament.
Critics of the treaty have been sceptical about any effect it will actually have on changing the behaviour of nuclear weapons states. They argue that the ban will be unlikely to result in any significant changes, as nuclear states will refuse to disarm and it is not reflective of the reality of the international security system. Lack of support by those states highlights the difficulty that will be faced in implementing the ban. Rather than an explicit prohibition of nuclear weapons, the Western nuclear states prefer a strengthening of the NPT. Without support from the powerful nuclear states the prohibition will only remain purely rhetoric rather than effectively adhered to by states.
Challenges for disarmament clearly lay ahead in light of the most recent nuclear aggression by North Korea. This was expressed by the representatives for the US, Britain and France who stated that the treaty offers no solution to “the grave threat posed by North Korea’s nuclear program, nor does it address other security challenges that make nuclear deterrence necessary”. They claimed that not addressing these concerns “cannot result in the elimination of a single nuclear weapon and will not enhance any country’s security… it will do the exact opposite by creating even more divisions at a time when the world needs to remain united in the face of growing threats”. North Korea and other nuclear weapons possessors continue to see nuclear weapons as a means of ensuring their security and sovereignty, and it will be difficult to shift this sentiment.
Despite this scepticism, this is the first time that such a firm statement of prohibition has ever been made. The treaty will be a clear starting point for altering the conceptions and behaviour of states towards nuclear weapons in international law. It will create a new international norm repudiating the use of nuclear weapons for security, and recognising the irreparable humanitarian and environmental damage that such weapons cause. Whilst currently missing the essential backing from the major nuclear states, two-thirds of UN states have already supported the treaty and this will result in increased pressure for those dissenting states to eventually comply with the treaty. Significantly, Iran, who agreed in 2015 to reduce its nuclear program, was amongst the countries to vote for the treaty. This underlines the added potential it may have for preventing further proliferation to non-nuclear weapon states.
The prohibition treaty also provides the opportunity for the development of a new framework and concrete mechanisms to regulate the international system and lead to new customary international law. Nuclear weapons are the last weapons of mass destruction to be prohibited in international law. The ban on biological and chemical weapons illustrates the ability to change perceptions and de-legitimise their use. The Biological Weapons Convention came into force in 1975 and set the precedent for banning an entire class of weapons. Similarly, the Chemical Weapons Convention came into force in 1997 with only three UN members – Egypt, North Korea and South Sudan- to not have signed it. History has demonstrated that international legal norms can change and the goal of eradicating nuclear weapons is not entirely impossible.
Regardless of its effectiveness in the short-term, the approval of the treaty marks a historic moment and a step closer to eliminating nuclear weapons. Richard Moyes, the managing director of Article 36, a UK organisation advocating the prevention of harm caused by nuclear weapons, speaking to Agence France-Presse, said “the key thing is that it changes the legal landscape”. The new treaty “stops states with nuclear weapons from being able to hide behind the idea that they are not illegal”. Difficulties will be faced but the treaty provides an opportunity for conceiving a nuclear weapons free world. It places increased pressure on nuclear powers to seriously commit to disarmament, and challenges the legality of any future reliance on nuclear weapons for security.
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