With its entry into force on 22 January 2021 the Treaty on the Prohibition of Nuclear Weapons (TPNW) will become binding international law for the growing number of State Parties, for the moment 51 countries. Moreover, it is also having an effect on those states that do not intend to join it.
The nuclear weapon states themselves testify to the TPNW's effectiveness by their campaign against it. They could have ignored it instead of pressuring countries not to sign and ratify.
The TPNW has clearly revealed their lack of will to comply with their obligation to nuclear disarmament in Article VI of the Nuclear Non-Proliferation Treaty. Since the latter's entry into force 50 years ago, the nuclear weapon states have not only failed to disarm, but have not even started to elaborate a plan for how to do it.
Instead, they are investing trillions of dollars in modernizing their arsenals, developing a new generation of even more sophisticated nuclear weapons, and lowering the threshold for their use.
For many years, the US has been on record at the UN to declare that they seek a world free of nuclear weapons and that such a world requires a legally binding prohibition norm. So, it is not the concept of the TPNW that is contentious, rather it is the fact that it has been put into existence by the majority of states without waiting for the nuclear weapon states. The nuclear weapon states had been invited to the negotiations, yet they preferred to boycott them. Some even put pressure on those countries which have chosen to put themselves under their nuclear umbrella to stay away from the negotiations. By doing so, it could be said that the nuclear weapon states have violated Article VI of the Non-Proliferation Treaty that requires them „to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament “.
The nuclear weapon states argued against the negotiations, insisting that a prohibition norm should only be created once there were almost no nuclear weapons left. This stands in stark contrast to the history of the prohibition of the other classes of weapons of mass destruction. If this line of thinking would have prevailed, neither the prohibition of chemical weapons would exist, since their destruction is still not completed. Without a prohibition norm against chemical weapons in place, the use of them by Syria and others over the last years would not have violated international law. This example, as many others regarding conventional arms, corroborates why the prohibition of a class of weapons always precedes their destruction.
The campaign against the TPNW centers on the argument that the TPNW does not eliminate a single nuclear warhead. This criticism falls back on the nuclear weapon states themselves, because no treaty and no non-nuclear weapon state can destroy their nuclear weapons for them. As long as they fail to do so, the risk to humankind will persist. For that reason, the TPNW is a focused prohibition treaty that leaves detailed procedures for destruction and verification to future regulation with states possessing nuclear weapons, once they join the treaty. As the mandate of the negotiations already expressed, the TPNW is designed to lead to the total elimination of nuclear weapons. The TPNW creates an indispensable basis on which further legal and practical steps can build.
What the TPNW underscores is that nuclear weapons are in fundamental contradiction to humanitarian values and international law. Since the bombing of Hiroshima and Nagasaki it has been rightfully argued that the use of nuclear weapons violates international humanitarian law, for these weapons cause excessive suffering and kill overwhelmingly civilians. The required clarity that nuclear weapons are illegal has finally been established by the TPNW.
Indeed, the catastrophic humanitarian consequences of nuclear weapons and the unacceptable risks which they bring about were the main motivation for the process that led to the adoption of the TPNW. Even a limited nuclear confrontation would result in global effects like „nuclear winter “. A considerable number of cases is documented in which misunderstandings, error or technical breakdowns almost caused the detonation of nuclear weapons. No humanitarian crisis response capacity exists or could ever be created that can cope with the humanitarian devastation that nuclear weapons would cause. For those reasons, the only guarantee that such a catastrophe does not occur is the prohibition of nuclear weapons and their total elimination.
The TPNW delegitimates nuclear deterrence at a time in history when this concept dating from the bipolar world of the Cold War area has been put in question by facts. How could nuclear deterrence be effective in a multipolar and digitalized world, when cyber hacking of nuclear systems can happen and hypersonic weapons by their sheer speed and non-ballistic course might permit a first strike without retaliation? In addition, the credibility of the concept of nuclear deterrence necessitates the readiness to use nuclear weapons and thus to kill millions of people, including one's own population. As President Reagan has said on nuclear deterrence as a means to make sure that nuclear weapons would never be used: „But then would it not be better to do away with nuclear weapons entirely?“
The prohibition implies that states must not build their security strategy on reliance on nuclear weapons. This concerns not only the nuclear armed states, but also those countries that have chosen to found their security on reliance on nuclear weapons of others. The TPNW exposes the contradiction in the position of these so-called „umbrella states“ that profess to work for the elimination of nuclear weapons and simultaneously want their continued existence for their „protection“. As in most umbrella states a majority of the population favours joining the TPNW, these dynamics might lead to a serious debate on nuclear disarmament resulting in a change of the position on disarmament. Another effect of the TPNW is the growing trend to disinvest from companies involved in the nuclear weapons industry. Not only the largest public funds are taking this course, but also an increasing number of investment funds of banks are doing so.
The entry into force of the TPNW coincides with a global pandemic, a threat to global, national and personal security that cannot be fought by nuclear weapons. Most of the major contemporary challenges to security starting with climate change cannot be confronted with weapons, let alone nuclear weapons. On the contrary, the modernization programs and upkeep of nuclear weapons systems siphons off the funds that would be desperately needed to tackle the predominant challenges to security.
This broader concept of security has also set the premises of the TPNW. National and humanitarian security mean the same thing: the security of the people living in a given country. If their own country uses nuclear weapons, the people would suffer in a horrific way and their very survival would be imperiled: first, by an expected nuclear counterstrike of the attacked state and secondly, as all of mankind, by the global humanitarian consequences of nuclear warfare. This is not security.
The global impact of nuclear weapons makes nuclear disarmament an issue in which all states have a stake and a say, since all would be affected. The TPNW is the first nuclear disarmament treaty that reflects this fact by treating all states at equal level.
The TPNW has also set a new standard that will become the new normal in another regard. In bringing about the TPNW, civil society has played a decisive role. The impact of the findings of scientists have informed the negotiations. NGOs and the International Committee of the Red Cross have contributed throughout the whole process greatly which has been acknowledged by the Nobel Peace Prize awarded to ICAN (International Campaign to Abolish Nuclear Weapons). The multi-stakeholder approach has been established before for cyber and environmental issues and is by now a well-worn approach with regard to anti-personnel mines and cluster munitions. With the TPNW it has reached the nuclear disarmament area. Matters of security are not exclusive to the military and diplomats anymore.
Finally, the TPNW mentions rightly the unacceptable suffering of the hibakushas, i.e. the victims of the nuclear bombings in 1945. It contains obligations on victim assistance and environmental remediation. In the negotiations these real-life effects of nuclear weapons were a strong motivation. The TPNW has succeeded in putting the fate of the individual into the center. Future disarmament treaties must follow suit.
Ambassador (ret.) Dr. Thomas Hajnoczi graduated as a doctor of law from the University of Vienna in 1977 and was the Director for Disarmament, Arms Control, and Non-proliferation at the Austrian Federal Ministry for Europe and International Affairs - a position he held already in the 1990s. Among his many posts over the years, Hajnoczi served as Deputy Permanent Representative to the United Nations in New York, Ambassador to the Kingdom of Norway, Director for Security Policy in the Ministry, Permanent Representative of Austria to the Council of Europe in Strasbourg and Permanent Representative to the United Nations Office at Geneva. He has been closely involved in several multilateral humanitarian disarmament processes, including the negotiations for the Anti-Personnel Mine Ban Convention and the Treaty on the Prohibition of Nuclear Weapons.