TPNW: the beginning of the end for nuclear weapons?
From END Info 32 | DOWNLOAD
By Tom Unterrainer
1MSP
The Treaty on the Prohibition of Nuclear Weapons (TPNW) came ‘into force’ on Friday 22 January 2021, following the fiftieth ratification, by Honduras, on 24 October 2020. The coming into force of the Treaty marks an important milestone in the ongoing campaign to rid the world of nuclear weapons. For the first time since the creation of atomic and nuclear weapons there is now an explicit prohibition – in the form of a United Nations Treaty – on the development, production, possession, use, threat of use or stationing of another country’s nuclear weapons on state party’s territory.
A second important milestone will take place in Vienna, Austria, at the end of June 2022. Here, the First Meeting of State Parties (1MSP) to the TPNW will take place. This meeting will see delegations from ratifying states, observer nations and a plethora of peace activists and researchers come together to discuss the TPNW’s progress and to map out the next steps.
In assessing prospects for the 1MSP and the TPNW itself, it is worth examining which aspects of the Treaty - beyond the ‘symbolism’ of the ‘ban’ - could be linked to concerted strategic efforts by the peace movements ‘on the streets’.
One measure of the impact of the TPNW are the connected facts that the major nuclear-armed states refused to participate in any part of the negotiating process and some of them felt moved to denounce the Treaty once it was agreed. By churlish non-participation, the nuclear powers suggested that their nuclear policies were not only unpopular with the vast majority of UN member states but that they couldn’t bring themselves to mount an honest, public defence of them. The denunciations and energetic attempts to bully signatories to the Treaty into withdrawal also illustrate the degree to which the nuclear powers were rattled at the prospect of the TPNW gaining traction. This fact alone makes ‘The Ban’ and the process that negotiated it of great and lasting value: “a frontal rejection of the geopolitical approach to nuclearism, and its contention that the retention of nuclear weapons is a proven necessity” according to Richard Falk.
TPNW
What of the Treaty itself? What does it say and what does it do? What doesn’t it do?
The TPNW is based in international law and now that it has come ‘into force’, comprises part of the system of international laws, overseen by the United Nations, which are supposed to regulate the conduct of individual states. As is well known, nuclear armed states are perfectly willing to violate, ignore or reinterpret such laws for their own ends. Indeed, the entire system of international laws designed to prohibit or limit the waging of war have been plagued by breaches since such laws were conceived of. The ill-fated ‘Paris Peace Pact’ was, upon agreement in 1928, heralded as “The Signing of the General Pact for the Renunciation of War” and enormous crowds swelled outside the Quai d’Orsay to witness events. Within three years, Japan had invaded China and within seven, Italy invaded Ethiopia. History records the vile dimensions of what happened next. Closer to the issue of nuclear weapons, the development and use of the V2 rocket – the design on which all present-day missile technology is based – by the Nazis during World War II is an illustrative breach of another international law: The Hague Land Warfare Regulations of 1907, which outlawed the bombardment of undefended residential areas. In all such cases, ‘geopolitics’ – or, to put it more bluntly, imperial ambition – trumped international law with devastating effects. Nevertheless, up until the point where international laws are breached they have material effect both in the sense of establishing a series of ‘norms’ by which state parties feel compelled to abide and in the sense that civil society has a standard by which to formulate demands for the actual regulation of the behaviour of states more generally.
Daryl Kimball argues that the TPNW was “designed to fill a ‘legal gap’ in the global nuclear non-proliferation regime” left open by the Non-Proliferation Treaty with its contradictory formulation of urging disarmament whilst giving legal recognition to nuclear-armed states. Further, Kimball argues that the TPNW is a “much-needed wake-up call that has the potential to stimulate further action and take us closer to a world without nuclear weapons.”
European impact
If we examine the impact of the TPNW on European states – a thorny nest of alliances and US-dominated interests – Beatrice Fihn and Daniel Högstra argue that, with:
“its entry into force, the ban on nuclear weapons will be another step towards developing a norm against possessing nuclear weapons. It will positively influence the behaviour of states that are not party to the treaty, including so-called ‘nuclear umbrella states’ … most of whom are on the European continent.”
One aspect of the Treaty which might concentrate the minds of European leaders is the degree to which the “classification of nuclear weapons as ‘controversial weapons’ by finance industry observers and investors” will impact financial markets and individual businesses. Echoing Falk’s characterisation of the TPNW as a “rejection of nuclearism”, Fihn and Högstra argue that The Ban could force greater transparency from European states about the full extent of their participation in and involvement with nuclear weapons. This is particularly clear when it comes to the reality of ‘nuclear sharing’ arrangements across Europe, where ‘non-nuclear’ NATO member states are committed to housing and ‘delivering’ (a grim euphemism for dropping) US nuclear weapons. To date, there has been little transparency about the full extent of nuclear weaponry in bases in Belgium, Holland, Germany and Turkey and even less about the commitments to drop weapons of mass murder at the command of the US Commander in Chief. Exposing this reality, a potential outcome of the TPNW process, would be a large stride towards further delegitimising nuclear weapons. A full debate and full transparency on this issue may have some significant legal ramifications in Germany, where the constitution explicitly rules against the participation of German citizens in crimes against humanity. How does the nuclear sharing arrangement and NATO commitments to deploy such weapons square with German constitutional law?
Article 7, points 1 and 6 of the TPNW state that:
1. Each State Party shall cooperate with other State Parties to facilitate the implementation of this Treaty …
6. Without prejudice to any other duty or obligation that it may have under international law, a State Party that has used or tested nuclear weapons or any other nuclear explosive devices shall have a responsibility to provide adequate assistance to the affected State Parties, for the purpose of victim assistance and environmental remediation.
The first point addresses the 1MSP. Such a forum for the discussion and promotion of nuclear abolition amongst states that have already made a legal commitment to such ends will provide an important platform for addressing the recalcitrance of the nuclear-armed states and for promoting denuclearisation more widely. This is surely an important step forwards, not only for the states themselves but for everyone involved in anti-nuclear campaigning. How Russia’s war against Ukraine and its geopolitical consequences will impact progress towards further TPNW ratifications is something that requires precise attention. These developments will be considered in the final part of this article.
Point 6 highlights a means by which international cooperation can address severe injustices resulting from the testing and previous detonations of atomic and nuclear weapons. For far too long, the nuclear powers have refused to make amends or have concealed the true extent of their crimes related to nuclear tests. A case in point is the situation in Algeria, which remains severely polluted from nuclear waste produced during French nuclear tests in the 1960s. Senior Algerian officials have seized the opportunity presented by the TPNW to renew demands for France to make urgent amends. The first step in the process would be for France to finally reveal the locations where it buried nuclear waste in the Algerian Sahara. Coordinated pressure from TPNW State Parties will be a massive boost to Algeria’s determined efforts on this score. Is it beyond the realms of possibility that Ireland and Austria – both TPNW ratifying states and both members of the European Union – press the case through the European Parliament and European Commission? The current commitments of both states to the TPNW and EU suggest that this is a possible and urgent course of action. However, it would not be reasonable to assume that either the Austrian or Irish governments will pursue such ends in the absence of a determined and mobilised anti-nuclear movement in both states and across Europe more widely.
So, even with a clear critique of the ways in which nuclear-armed states conduct themselves and the limitations of international law in many cases, it is possible to see the overwhelming positives presented by the TPNW coming into force. However, Falk argues that there remains a “near fatal weakness” at the heart of The Ban. True, signatures, and even more, the formal entry into force of the treaty lends weight to the claim that the international community has, as Falk puts it:
signalled in an obligatory way the repudiation of nuclear weapons for any and all purposes … The enormous fly in this healing ointment arises from the refusal of any of the nine nuclear weapons states to join in the TPNW process even to the legitimating extent of participating in the negotiating conference with the opportunity to express their objections and influence the outcome.”
Even before events in Ukraine, the existing nuclear powers and their allies were not active and positive participants in the TPNW process. We will now examine why this is a major problem.
Challenges
The initial approach of the nuclear-armed states and their related alliances to the TPNW was to adopt a ‘persistent objector’ status. As Steven Hill points out in his Chatham House report on NATO and the TPNW, 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.
As such, any engagement by nuclear-armed states or members of nuclear-alliances in the TPNW process could ‘crack open’ this carefully considered approach to preventing the TPNW from becoming a ‘customary law’. Prior to Russia’s invasion of Ukraine, there were a number of encouraging signs that just such a ‘crack’ could develop. For instance, the coming to power of the SDP/Green/FDP government in Germany was preceded by lively debate about the future of US nuclear bombs stored in that country. The Greens specifically campaigned on a commitment to sign and ratify the TPNW and the SDP and FDP both stated commitments to pursue nuclear disarmament (albeit in an undefined fashion).
The coalition agreement between these parties included a commitment to work toward a Germany and a world free from nuclear weapons. Mention of the TPNW was not included. However, a clear dynamic was developing and it was not unreasonable to hope that the new German government would send observers to the 1MSP. Had they done so, it would have eased the way for other non-nuclear states, formally tied to NATO or not, to send observers also. Such developments would have done some damage to efforts at maintaining a ‘persistent objector’ approach.
What changed? Far from being a ‘limited security operation’, or whatever President Putin characterises it as, Russia’s invasion of Ukraine has done nothing to boost security: certainly not for the Ukrainian people; definitely not for Russia which will now see NATO expand closer to its borders; and most definitely not for Europe and rest of the world. Geopolitics is not the be-all-and-end-all of understanding events but it is essential to understand that as a result of Russia’s actions, the geopolitical developments underway prior to the invasion have benefited from a significant boost. From Sweden and Finland applying to join NATO, to the record levels of military spending now promised by European states, to the more confident - and therfore dangerous - military postures adopted by the US and NATO: the world has become a much more dangerous place.
One artefact of the danger is that it will now be more difficult for the TPNW to get a hearing in the corridors of power. Not only has the ‘crack’ in ‘persistent objection’ been filled but the idea that nuclear weapon possession and membership of nuclear alliances ensures ‘security’ has been boosted.
In recognising these challenges, the movements for nuclear abolition need to think about how to overcome them. If one thing is clear, then it is this: without a creative, vibrant, expansive and determined social movement arguing for nuclear abolition, disarmament, de-militarisation and peace then it seems unlikely that swift and decisive governmental, legal and political changes will occur. Our task is to build such a social movement.