The TPNW and International Law

From END Info 17 | July 2020 (Download)

by Joachim Wernicke, Berlin

After the UN Treaty on the Prohibition of Nuclear Weapons (TPNW) comes into force, it can be expected that all nine nuclear weapon states will assert that the treaty is not valid because they have not acceded to it. The 26 non-nuclear weapon states in NATO will probably follow the United States, Britain and France on this line. Formally, they are right. However, the members of the nuclear Non-Proliferation Treaty (NPT) are subject to its commitments, even if they continuously disregard them.

Thirty-one states in the NPT, including the NATO states, are also likely to claim that the TPNW, even if it came into force, is not universal international law. But they will not be able to say that the NPT does not apply to them. The TPNW does not replace the NPT, but supplements it.

So it is worth taking a look at which obligations the TPNW has assumed from the NPT and what is new about it. The similarities and differences are clear from the decisive wording in the two.

From the NPT:

Article 1: Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Article 2: Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.

Article 6: Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

In contrast, from the TPNW:

Article 1. Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

From this can be seen immediately:

1. Almost 50 years after the NPT came into force, all five nuclear weapon states in the NPT violate its Article 6 by failing to fulfill their disarmament commitments, instead - as of 2020 - they upgrade their nuclear weapons. In doing so, they show that they have only faked “good faith” to nuclear disarmament.

2. The United States violates NPT Article 1 by directly transfering nuclear weapons to non-nuclear NATO states and control over them [nuclear sharing].

3. The five non-nuclear weapon states with nuclear sharing in NATO violate NPT Article 2 by directly undertaking to receive the transfer of nuclear weapons and of control over them, from the USA: In the event of war, their pilots have this control, even if during the mission flight only for a short period of time (or for a longer period of time: the pilot who ever wants to sleep without nightmares again after this flight has the freedom, for example, to desert to an enemy airfield with his unused dangerous cargo).

4. For non-nuclear weapon states in the NPT, TPNW points (a) and (c) correspond to the contents of the NPT.

5. The TPNW point (b) concerns nuclear weapon states and specifies their obligation according to NPT Article 6.

6. The TPNW point (d) reflects general international law, as the International Court of Justice ICJ found in 1996 at the request of the UN.

7. The ICJ's 1996 statement left open whether the use of a nuclear weapon is illegal in the event of a state's existence being jeopardized. However, this only applies to the owner of the nuclear weapon, not to supporting allies, because such support from third parties does not affect his own livelihood. Nuclear participation within the framework of NATO is therefore illegal according to the ICJ's statement in 1996.

8. The TPNW points (e) and (f) relate to the general fulfillment of the contract, not expressly to nuclear weapons.

9. The last TPNW point (g) prohibits non-nuclear weapon states from tolerating nuclear weapons on their territory. Among the non-nuclear weapon states, it is only NATO countries that tolerate nuclear weapons on their territory. According to the NATO strategy, these serve as a nuclear deterrent, i.e. as a means of threat. However, this is prohibited according to the ICJ's statement in 1996.

10. The “Treaty on general and complete disarmament under strict and effective international control” mentioned in NPT Article 6 has been created with the entry into force of the TPNW. This goal of the NPT is thus fulfilled and the TPNW thus indirectly applies to members of the NPT, regardless of whether they are direct members of the TPNW.

It can therefore be stated that the TPNW contains nothing that has not been international law for a long time due to the NPT and the ICJ declaration of 1996. The TPNW has therefore not changed the current legal situation, but only specified it and provided it with a time stamp. Already today, definitely from its entry into force, the essential points of the TPNW are also valid international law for the five official nuclear weapon states and for the NATO member states, regardless of whether or not they have signed the TPNW separately.

NATO-oriented voices will likely give a different assessment of the situation. In contrast to the natural sciences, there is no uniqueness in legal questions, but usually the opposite of an assertion can be proven too. Generations of lawyers live from this language design option.

The fact that the 2017 agreement received the approval of the vast majority of the 2017 United Nations General Assembly may also play a role in the value of the TPNW: 122 out of 193 states, i.e. 63 percent. The 9 nuclear-weapon and 25 nonnuclear states in NATO (excluding the Netherlands) stayed away from the vote, leaving 159 states. This increased the approval rate in the vote to 77 percent, a clear vote by the international community. The decisive difference between the TPNW and the NPT is the time schedule for nuclear disarmament: Instead of “Saint-Never-Day” in the NPT, “Immediately” in the TPNW. The nuclear-weapon states should appreciate that the non-nuclear-weapon states have waited patiently for half a century for the promised nuclear disarmament before they resorted to self-help.

Does the TPNW apply to a state that has ratified it before 50 ratifications have enacted it? This is at the discretion of the state.