The United Nations Disarmament week could not start with better news: on Sunday 25 October 2020, the Treaty on the Prohibition of Nuclear Weapons (TPNW) was ratified by Honduras, the last of the required fifty states to activate the treaty. Thanks to this ratification, the treaty will become legally binding at the beginning of 2021 and will outlaw the use, the possession and production of nuclear weapons. Even though nuclear weapons cannot yet be considered completely outlawed by international law, this is a very significant step towards the elimination of these terrible weapons.
Once in force, the TPNW will outlaw the use, possession, transfer, and acquisition of nuclear weapons, and it will extend other obligations to state parties, including the prohibition to provide assistance to other states in their undertaking of actions prohibited by the TPNW.
It must be said that the TPNW will not extend its obligations to states that did not ratify it. Unfortunately, all the states with nuclear weapons, as well as most of their allies, did not ratify the TPNW. The absence of these states prevents that the ban on nuclear weapon turns into an international customary norm and becomes binding for every state in the world.
Several sceptical or realist voices point out at the fact that the absence of nuclear-weapon states in the list of the state parties to the TPNW weakens the significance of the treaty and its content. Surely, the TPNW does not give us a nuclear-weapon-free world at the moment, but its importance cannot be easily dismissed.
In fact, the obligations conveyed by the norms of the TPNW have the potential to trigger some wider effects. For example, state parties to the treaty cannot host nuclear weapons of other states on their territory or within their jurisdiction. Furthermore, it is noteworthy that articles 6 and 7 of the TPNW require state parties to assist victims of the use of nuclear weapons, including their testing, and to remedy environmental consequences caused by these weapons.
Without a doubt, the TPNW has the potential to create a community of states intended to live in a world free from nuclear weapons, where international security and peace can be maintained without the threat of the extensive suffering and destruction that nuclear weapons can cause. If one believes that all the states are equal in theory, the effort of the fifty states towards the entry into force of the TPNW cannot be easily dismissed. These states represent one-fourth of the states in the world and are also potential victims of a possible nuclear attack and its effects.
Nuclear disarmament has been a central topic for the international community since at least the establishment of the United Nations (see for example the very first UN General Assembly Resolution of 1946). These weapons confer the power to destroy entire nations and cause long-lasting effects on survivors, animals, and the environment to certain states, currently China, France, India, Israel, North Korea, Pakistan, Russia, the UK and the US; however, international law has never banned the use and the possession of these weapons completely.
Nuclear weapons have been possessed and maintained by some states to deter a first strike through the threat of an equally destructive second strike against the first attacker. Several non-nuclear-weapon states appear to adhere to this doctrine, such as all the member of the NATO. In fact, in the current state of international relations, states that possess nuclear weapons maintain their superior military power; renouncing to nuclear weapons would mean losing that power.
However, several other states accepted to renounce to these weapons, adhering to treaties like the Non-Proliferation Treaty of 1968, or the treaties establishing nuclear-free zones in several regions of the world. Nuclear-weapon states part in the Non-Proliferation Treaty committed to negotiating in good faith towards the complete elimination of these weapons, but no significant steps towards that goal have been done yet. In 1996, the International Court of Justice stated that the use of nuclear weapons would generally be in breach of the international law applicable to armed conflicts, but its lawfulness could not be completely excluded ‘in extreme circumstances of self-defence’.
The power conferred by nuclear weapons is based on the threat of death and long-lasting harming effects caused by a nuclear attack. This form of power appears in contradiction with the idea of collective peace and security based on the respect of the human rights of every person in the world. Furthermore, the continuing possession of nuclear weapons and the adoption of doctrines based on the power granted by these weapons virtually justify every state to develop its own nuclear arsenal to gain that power. In fact, it is noteworthy that current nuclear states were part of a nuclear arms race in the 20th century started with the application of nuclear energy for military purposes.
It’s clear that the route towards the complete nuclear disarmament is still very long, as there remain states that believe in the usefulness of these weapons, forgetting about or ignoring their terrible effects. If we look back at the previous centuries, practice like slavery, torture, and war were all undiscussed social institutions. Now, those practices are considered unlawful by international law. The total elimination of nuclear weapons is still something belonging to the future. However, the imminent entry into force of the Treaty on the Prohibition of Nuclear Weapons is giving us a little taste – and for many, hope – of the future world without nuclear weapons.