Persistently objecting

Tom Unterrainer

From END Info 33 DOWNLOAD

The presence of member and soon-to-be members of the nuclear-armed NATO alliance at the First Meeting of State Parties (1MSP) to the Treaty on the Prohibition of Nuclear Weapons (TPNW) raises a number of questions. First amongst these is: what were they doing there?

One, charitable, interpretation of their attendance is that such states are - in stark contradiction to their ‘voluntary’ military associations - strenuously committed to nuclear abolition. As such, any and all forums designed to discuss and further the aim of nuclear abolition are of great and sincere interest.

Another, less charitable, interpretation is that the presence of NATO and soon-to-be NATO states at such meetings is a cold and calculated legal manoeuvre.

In issues 22 and 23 of END Info the question of ‘persistent objector’ status was raised. In international law, a ‘persistent objector’ is a state or states that consistently and clearly object to a ‘norm’ of law from the time of the emergence of such a ‘norm’. It is understood that such persistent objection can act to prevent a particular law from becoming a ‘customary’ or generally accepted part of international law.

In issue 22 (Feb 2021), we looked at the Chatham House report ‘NATO and the TPNW’ and in a follow-up (issue 23, March 2021) we focussed on ‘persistent objector’ status in particular. The Chatham House report explains:

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.

In issue 32 (‘TPNW: the beginning of the end for nuclear weapons?’) we speculated that the presence of NATO member states at the 1MSP could represent a ‘crack’ in the ‘persistent objector’ status. What actually happened points in the opposite direction: no cracks emerged. Rather, NATO and NATO-aligned states took the opportunity of their observer status and the speaking rights afforded to them to either challenge the TPNW itself or to promote fallacies around nuclear weapons.

For instance, the statement from Sweden, delivered by Ann-Sofie Nilsson, reads as follows:

Sweden has a longstanding and continuous engagement for nuclear disarmament. Let me reiterate that the Swedish Government’s decision of 2019 to not sign nor ratify the TPNW stands. We note that the Treaty does not include any of the countries that possess nuclear weapons, which we do not see as a realistic or effective way forward...

For decades, Sweden has been a strong advocate and active promoter of disarmament and non-proliferation – these efforts will continue and will remain firmly rooted in the framework of the NPT, the cornerstone of the global disarmament and non-proliferation architecture.

Whilst there is no explicit defence of nuclear weapons or nuclear doctrines as such, there is explicit opposition to the TPNW and a clear affirmation of the NPT. All of this suits the nuclear-armed states which have all failed to comply with the NPT, let alone advance the aim of nuclear disarmament more generally. The suggestion that the TPNW and NPT in some way contradict each other is all-too familiar and, more to the point, wrong.

Norway’s statement is more explicit:

Norway is attending this conference as an observer. This is not a step towards signing nor ratifying the TPNW, which would be incompatible with our NATO obligations. Norway stands fully behind NATO’s nuclear posture.

The Netherlands strikes a similar note:

• The Netherlands remains firmly committed to NATO, including its policy of nuclear deterrence and our nuclear task. And this NATO Membership remains essential for our collective security.

• The Netherlands does not have the intention to sign or accede to the TPNW. It is incompatible with our NATO obligations. However, the fact that we do not accede to the TPNW, or accept the claim that its provisions have a binding effect under customary law, does not mean that we do not appraise the opportunity to observe the discussions here today. Open and frank dialogue are essential for the Netherlands.

• In fact: this is not the first time we have participated in the TPNW discussions. We would like to remind delegations of our participation in the 2017 negotiations leading up to this Treaty, including offering concrete suggestions to make the TPNW a more broadly acceptable and credible disarmament treaty - not only to us but also possibly to other NATO Allies – which were unfortunately rejected.

Here, The Netherland’s not only objects but points out that it has been objecting since 2017! They have been ‘persistently objecting’ to the TPNW from the very start. The first prize for clarity, enveloped in a cloud of dire hypocrisy, is awarded to Germany, which stated in its address to the 1MSP that:

As a member to NATO – and as long as nuclear weapons exist, NATO will remain a nuclear Alliance -, and confronted with an openly aggressive Russia, which has not only invaded Ukraine but is threatening the rules-based international order and peace in Europe, Germany cannot accede to the TPNW, which would collide with our membership in NATO including nuclear deterrence. As non-member to the TPNW we are not bound by its provisions, nor do we accept the claim that its provisions are applicable under customary law – now or in the future.

It is almost as if, like me, the Germany Foreign Office did an internet search of ‘persistent objector’ and crafted their statement to the 1MSP in order to precisely comply with the definition.

It is clear, then, that the NATO and soon-to-be NATO states in attendance at the 1MSP maintained a deliberate and coordinated approach. None of these states is itself nuclear-armed but both The Netherlands and Germany host US nuclear bombs under ‘nuclear sharing’ arrangements. Sweden, in its letter of intent to join NATO, scrapped decades of neutrality and opposition to nuclear weapons for an explicit recognition and acceptance of the fact that NATO is a nuclear alliance.

Where does this leave the TPNW? As events in Vienna demonstrated, the majority of the world stands in opposition to nuclear weapons. The global majority wants such weapons to be abolished. Unsurprisingly, the minority of states with nuclear weapons and the non-nuclear states with which they are aligned have no intention - despite repeated claims otherwise - of ever giving them up: at least, not without a fight.

If the TPNW is to move from a voluntary treaty to a customary rule under international law, then the persistent objectors will have to change their tune. It is at this point that effective political action and the political change that comes with it becomes an essential consideration. Perhaps the first step would be to call-out Germany, Sweden, Norway and The Netherlands for their actions at 1MSP: make it clear that we know just how cynical they are. Those of us in nuclear-armed states who called on our governments to attend 1MSP as observers need to think about what we’re actually asking them to do: can they be trusted to positively engage in genuine discussions towards nuclear abolition or will they simply use the platform to ‘persistently object’? Current evidence suggests the latter rather than the former.

The achievements of those states, NGOs and campaigners who came together to forge the TPNW are immense. The 1MSP was a clear demonstration of majority opinion. The task of securing global nuclear abolition made a giant stride forward with this frontal rejection of nuclear weapons. The ‘persistent objectors’ represent a political roadblock to abolition. Political roadblocks are removed by political means.