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A Brief Guide to the New Nuclear Weapons Ban Treaty

 

The majority of the world’s countries just adopted a new treaty banning nuclear weapons, placing them in the same category of international law as other weapons of mass destruction (chemical and biological weapons) or that cause unacceptable harm (landmines and cluster munitions). Despite this being the most significant development in global nuclear politics since the end of the Cold War, discussion of the Treaty on the Prohibition of Nuclear Weapons is almost absent from the U.S. news media and often misunderstood in DC policy circles.

While nuclear-armed states and those in nuclear alliances have actively opposed the negotiations, the treaty has the potential to stigmatize and delegitimize nuclear weapons, casting those who stockpile them as ethical pariahs. For example, in signing up to the treaty, states commit to universalizing categorical norms against nuclear weapons.

The treaty results from a series of international conferences on the humanitarian consequences of nuclear weapons and political discussions in the UN General Assembly. These conversations concluded that there could be no legal, ethical or moral justification for nuclear weapons, given their devastating harm to people and the environment and the alarming risks of accidents and close calls.

The treaty was approved by a vote at the UN on July 7: 122 countries voted in favor, the Netherlands against and Singapore abstained. The treaty will be available for countries to start signing it  on September 20.

One big takeaway from the negotiating process is it has been much more inclusive of voices excluded from major nuclear arms control talks of the past, such as survivors of nuclear weapons use and testing, indigenous peoples, states in the Global South, academics, faith leaders and civil society, foremost the global coalition International Campaign to Abolish Nuclear Weapons (ICAN).  

Here is a basic overview of the treaty and its contributions to international law and nuclear disarmament. 

Preamble Frames Nuclear Weapons as Contrary to the Principles of Humanity

Traditional nuclear arms control agreements (like the Nuclear Non-Proliferation Treaty (NPT), ABM Treaty, SALT I & II, START I & II and New START) have no mention of the human and environmental costs of nuclear weapons. By contrast, last week’s  Ban Treaty is the first major nuclear arms agreement to specifically frame nuclear weapons as a threat to humanity and contrary to international humanitarian law and international human rights law.  

Like some Nuclear Weapons Free Zone treaties (Bangkok, Pelindaba, Rarotonga), the Partial Test Ban Treaty and the Comprehensive Nuclear-Test-Ban Treaty (CTBT), it also acknowledges harm to the environment, but goes further, asserting that nuclear weapons pose dangers to sustainable development, including “socioeconomic development, the global economy, food  security  and  the  health  of  current  and  future  generations” and have had disproportionate impacts on “women and girls” and “indigenous peoples.”

The first section of the new treaty’s preamble establishes this humanitarian case, expressing concern for the “catastrophic humanitarian consequences” of a nuclear detonation that “cannot be adequately addressed, transcend national borders” and pose “risks [to]… the security of all humanity.” As such, nuclear weapons are ethically “abhorrent to the principles of humanity.”

This establishes the “consequent need to completely eliminate … [nuclear] weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances.” Indeed, the preamble notes that in the very first UN General Assembly Resolution in 1946 and other international agreements (such as the 1968 Nuclear Non-Proliferation Treaty (NPT)), the world’s countries have committed to pursuing “negotiations leading to nuclear disarmament … under strict and effective international control.” Unfortunately, the pace of disarmament has been “slow” and many countries continue to rely on “nuclear weapons in military and security concepts, doctrines and policies.”

As a result, the treaty is framed as a stigmatizing instrument establishing a powerful norm against nuclear weapons and generating political pressure for further disarmament, through “disarmament education”, “raising awareness” and “dissemination of the principles and norms of this Treaty.”

It is worth noting that, to a mixed critical reception, the preamble clarifies that the treaty deals only with nuclear weapons, recognizing states’ “inalienable right” to peaceful uses of nuclear energy (derived from the NPT).

Article 1: Categorical Prohibitions

The Nuclear Weapons Ban Treaty’s core provisions are a series of categorical prohibitions (“never under any circumstances”) against nuclear weapons in Article 1, including:

  • Development, testing, production, manufacture, acquisition, possession or stockpiling (Article 1(a));
  • Transfer (Article 1(b) and (c));
  • Use or threatening to use (Article 1(d));
  • Assisting, encouraging or inducing any of the above prohibited acts, or seeking assistance from others to engage in prohibited acts (Article 1(e) and (f)).
  • Allowing other states to station, install or deploy nuclear weapons on their territories (Article 1(g)).

These provisions make clear that all members of the treaty cannot rely on nuclear weapons in any way, for any reason.

Articles 2-4: A Pathway to Renunciation by Nuclear-Armed and Nuclear-Allied States

While the treaty has been negotiated by states that do not have nuclear weapons, they wanted to provide a framework to enable those countries that do possess them (or allow other states to station nuclear weapons on their territory) to be able to join. The treaty offers two pathways. States can either destroy their stockpiles before joining the treaty, or join and then start a timebound disarmament process. Article 2 requires all states joining the treaty to make a declaration regarding whether it has ever “owned, possessed or controlled any nuclear weapons” and whether it has eliminated them. Article 4 offers states the opportunity to join the treaty with nuclear arms still in their possession (or on their territory), as long as the weapons are immediately removed from operational status and agree to a “legally binding, time-bound plan for the verified and irreversible elimination” approved by the treaty’s members.

To verify that nuclear weapons are being destroyed and that any nuclear materials are kept secure, preventing diversion, Article 3 requires all members of the treaty to adopt safeguards, overseen by the International Atomic Energy Agency. The treaty permits safeguards to become stronger over time and prohibits weakening of the safeguard regime (Articles 3 & 4). This will prevent states from “forum-shopping” between the ban treaty and other non-proliferation instruments.

Article 5: Criminalizing Nuclear Weapons

To ensure that the new treaty has teeth, Article 5 requires all members to put in place “all appropriate legal, administrative and other measures” to address the harms caused by nuclear weapons and enforce the prohibitions. This includes “the imposition of penal sanctions, to prevent and suppress any activity prohibited … undertaken by persons or on territory under its jurisdiction or control.”

Article 6-7: Recognizing Rights, Remediating Harms

Given that the moral case for the treaty process relied heavily on the testimony of the survivors of nuclear weapons use and testing, civil society campaigners pushed hard to ensure that the final text included strong provisions on assistance to victims and remediated contaminated environments.

Article 6.1 requires all treaty members with “individuals under its jurisdiction who are affected by the use or testing of nuclear weapons… [to] adequately provide age- and gender-sensitive assistance…, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.” It clarifies that this must be done “without discrimination” (assistance to survivors has often been provided inequitably, for instance providing more assistance to military veterans than civilians) and “in accordance with applicable international humanitarian and human rights law.”

Article 6.2 requires all states with areas that have been “contaminated as a result of activities related to the testing or use of nuclear weapons … [to] “take necessary and appropriate measures towards the environmental remediation….”

There was considerable debate during the conference about who was ultimately responsible for addressing the harm caused by nuclear weapons. Several states wanted it to be clear that the governments that caused the problem should be responsible for helping those they have hurt and cleaning up the mess they caused. However, as the delegate from Ecuador put it during a plenary meeting, “if a car hits me walking across First Avenue and drives away, I hope you don’t wait for the perpetrator to call the ambulance before giving me help.”

Consistent with other international humanitarian and human rights law, and in accordance with the principle of state sovereignty, the treaty places primary responsibility and control for aiding victims and remediating contaminated environments on the states affected.

However, since the treaty frames nuclear weapons as a threat to the whole of humanity, it establishes that addressing the harms of nuclear violence is the duty of all people. Therefore, Article 7 expands the circle of responsibility to all members of the treaty, which are required to cooperate and provide “technical, material and financial assistance” to help other states meet their obligations. It also encourages the involvement of the UN system, the Red Cross and civil society.

Nevertheless, Article 7.6 asserts that states joining the treaty that have used or tested nuclear weapons “have a responsibility to provide adequate assistance to affected States Parties.” Nothing in the treaty precludes affected states from seeking redress from user and tester states through other peaceful legal, diplomatic and political means.

Ban treaty advocates also hope that Article 6 and 7 will offer opportunities to persuade states outside the treaty to engage with its norms. By inviting them to provide assistance to people and environments harmed by nuclear weapons as a part of their foreign aid, it could draw them into conversation with members of the treaty and raise awareness of the catastrophic humanitarian and environmental consequences of nuclear weapons.

Article 8-12: Convening a New Forum and Mechanisms for Stigmatizing Nuclear Weapons

Achieving nuclear disarmament has been stymied for decades by deadlock in the multilateral forums mandated to negotiate it. The UN Security Council, the Conference on Disarmament and the NPT Review Conferences allow the states that possess nuclear weapons to block any attempts to move forward. The new ban treaty establishes biennial meetings of the treaty’s members (Article 8) as well as review conferences every six years.

These meetings will allow states to review progress on implementation and universalization of the treaty, as well as potential disarmament measures. Given the discursive and stigmatizing purpose of the treaty, Article 12 requires all treaty members to encourage states outside its regime to join, establishing the “goal of universal adherence.”

Article 9 establishes a way to pay for the meetings of treaty members, Article 10 allows states to adopt amendments to the treaty to adapt to new challenges and Article 11 clarifies how states will peacefully resolve disputes “relating to the interpretation or application of this Treaty.”

Articles 13-20: Institutional Intricacies

The rest of the treaty deals largely with legal particulars, including how states can join (Articles 13 & 14) and when it will enter into force – 90 days after 50 states ratify the agreement (Article 15). It clarifies that states cannot attach reservations to their signature on the treaty (Article 16) and that it will be of “unlimited duration” (Article 17(1)). It establishes the UN Secretary as the official depositary of the treaty (Article 19) and that the versions of the treaty in all UN official languages (Arabic, Chinese, English, French, Russian and Spanish) “shall be equally authentic” (Article 20).

Even though the tail-end of the treaty might seem less interesting than its beginning, elements were subject to significant debate. Several states fought hard to ensure that the new ban treaty would not undermine the NPT or the CTBT. As a result, the preamble reaffirms the NPT as “the cornerstone of the nuclear disarmament and non-proliferation regime” and the “vital importance” of the CTBT. This is enshrined in the legally binding part of the treaty in Article 18, which requires the treaty’s implementation to “not prejudice obligations [in other] … existing international agreements,” as long as “those obligations are consistent with the Treaty.”

More controversially, Article 17 acknowledges a state’s “right to withdraw … if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country.” To make sure this is not done lightly, a withdrawing state must provide an explanation and wait for a 12 month period. If the withdrawing state is engaged in an armed conflict, it will continue to be legally bound by the treaty until the war is over.

When the withdrawal clause was debated by the negotiation conference, the vast majority of states were in favor of deleting or even prohibiting withdrawal, but it remained due to the stubborn insistence of a few states (e.g. Algeria, Bangladesh, Egypt, Iran, Philippines, Sweden). This was condemned by civil society campaigners that argued that allowing withdrawal sent the wrong message regarding the universal and categorical prohibition being established. However, most treaties, including disarmament instruments, have withdrawal clauses. And the phrasing of Article 17 makes it more challenging to withdraw than from the NPT and conventions banning chemical and biological weapons.

The Road Forward

In explaining their support for the treaty, the delegate from Ireland said it “demonstrates our ability to change the world one step at a time.” Given the non-participation of those most to blame for lack of progress on nuclear disarmament, the ban treaty will not conjure a nuclear weapon-free world overnight, or anytime soon. However, it establishes a clear norm that nuclear weapons pose a risk to the safety, security and prosperity of all humanity. It places the human and environmental harm caused by nuclear weapons at the center of the conversation.

This will create political pressure on those states that have overwhelmingly anti-nuclear publics but have provided diplomatic cover for the persistence of nuclear arsenals (such as Germany, Netherlands, Norway, Japan and Australia). In short, as states join and implement the treaty, it will make a defense of nuclear weapons look increasingly out of step with the global moral, ethical and legal consensus.

Image: Moment of treaty adoption on July 7. Photo by International Campaign to Abolish Nuclear Weapons

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About the Author

is director of the International Disarmament Institute and associate chair of political science at Pace University in New York City. You can follow him on Twitter (@politicalmines).