Persistent objectors

by Tom Unterrainer

END Info 22 (Feb 2021) reported on a recent report from Chatham House, ‘NATO and the TPNW’ (page 5). This report is, available online, is worth closer examination in one particular regard: the matter of ‘persistent objectors’. The report states as follows:

While it is a general principle of international law that treaties do not create obligations for third states, it is also an accepted principle that a rule set forth in a treaty could, under certain conditions, become binding on a third state as a customary rule ... However, this is not an automatic process. Two distinct concepts are relevant here: the concept of so-called ‘specially affected states’, and that of ‘persistent objectors’ ... As the ICJ has explained, a lack of consent from specially affected states may have the effect of preventing the required general state practice from emerging, preventing the rule from coming into being in the first place. There is a strong argument that states with nuclear weapons and those in a nuclear alliance would be specially affected by a proposed ban on nuclear weapons. Even if a rule is indeed created, states that have objected to a certain degree to its emergence - so-called persistent objectors - will not be bound by it.

What does all this mean and what does it explain? It seems that the hope that the TPNW will create a decisive ‘normative shift’ in international law with respect to nuclear weapons is in question. What Steven Hill1 points out in his Chatham House report is that if a state or alliance of states persistently raise their objections to a treaty, then they can - in the terms set out in international law - prevent such a treaty from becoming ‘customary law’ or binding on states which have not signed up to the treaty. So whilst the TPNW will be ‘in force’ in those states which have ratified the treaty, ‘persistent objection’ on the part of the nuclear-armed states and allies could prevent a more general application of the treaty provisions.2

How to address this potential barrier? How to react to the ongoing insistence of the nuclear-powers that their possession of instruments of mass murder is in any way legitimate?

An important step is to understand that the TPNW will not steadily accrue widespread legal status through the ongoing workings and mechanisms of international law. The ‘persistent objections’ of the US, UK, NATO and whoever else must be met with organisation and mobilisation of great legions of persistent objectors on the streets, in the conference rooms, inside political parties and social movement organisations. We must continue to find creative and imaginative means to apply the concrete lessons of the TPNW, to mount sharp arguments against ‘nuclearism’, to sound the alarm about the manifold dangers presented by such weapons and the geopolitical strategies of their possessors.

There is much work to do.

Notes:

1 Hill, Steven (2021) ‘Nato and the Treaty on the Prohibition of Nuclear Weapons’, Chatham House, London accessed at https://www.chathamhouse.org/2021/01/nato-and-treaty-prohibition-nuclear-weapons

2 See Falk, Richard (2021) ‘Challenging Nuclearism’ in The Spokesman 147: Challenging Nuclearism, Spokesman, Nottingham for an extended discussion on this a related point