The UN Treaty on the Prohibition of Nuclear Weapons—Fruitful or Futile?

Since launching its full-scale invasion of Ukraine, Russia has deployed nuclear intimidation to deter foreign intervention. From implicit orders to put Russia’s nuclear forces on alert to ominous threats that anyone in Russia’s way would face “consequences such as you have never seen in your entire history,” Putin has recklessly raised the nuclear stakes. [1] Russia’s aggressive behavior not only sets back decades of work on nuclear disarmament, but also poses new challenges for recent milestones such as the Treaty on the Prohibition of Nuclear Weapons (TPNW). First established in January 2021, the TPNW became the first international legal instrument that subjected nuclear weapons to a comprehensive ban. In addition to prohibiting nations from “producing, testing, acquiring, possessing or stockpiling nuclear weapons,” it “bans any transfer or use of nuclear weapons… and the threat to use such weapons.” [2] Ultimately, however, while the TPNW can be influential to a lesser extent by contributing to the normative stigma of nuclear use, it is ineffectual to a greater extent due to a lack of global participation, enforcement mechanisms, and legal precedent. Thus, the TPNW is symbolic rather than effective in accomplishing its purpose of abolishing nuclear weapons. 

The TPNW is the first multilateral treaty that attempts to subject nuclear weapons to a categorical ban. While the previous nuclear disarmament framework has focused only on preventing first-use (No-First Use pledges) or proliferation (1968 Nuclear Non-Proliferation Treaty), the TPNW is a landmark legal instrument because it comprehensively prohibits nuclear weapons. [3] The TPNW also indirectly achieves its aim of nuclear abolition by contributing to a resurgence of the nuclear taboo. Coined in 1999 by Professor Nina Tannenwald, a “nuclear taboo” refers to the normative belief in the de facto prohibition against nuclear weapons use, and is “essential to explaining the overall pattern of non-use” since WWII. [4] According to Müller and Wunderlich of the Peace Research Institute Frankfurt, norms can be defined as “shared understandings about appropriate behavior” that “frame and solidify understanding of right and wrong.” [5] The TPNW and the process that paved its way have transformed norms of the global nuclear order. From integrating scientists’ findings to foregrounding the Hibakusha suffering, the TPNW heavily involved the civil society during its negotiations process throughout the three international conferences in 2013 and 2014 [6]. By spotlighting the catastrophic humanitarian consequences of its use, the TPNW delegitimizes the framing of nuclear weapons as a deterrent for security and protection. However, even Tannenwald acknowledges that “norms do not determine outcomes. They shape realms of possibility.” [7] While the TPNW may reduce the likelihood of nuclear weapon use, it is not the ironclad guarantee it aspires to be. If nuclear armed states actively invalidate and undermine the TPNW, they could prevent nuclear abolition from truly becoming a customary international norm. In truth, the TPNW is hindered by a number of political, practical, and legal flaws. 

A primary political obstacle hampering the TPNW’s effectiveness is the lack of participation due to the widespread reliance on the doctrine of nuclear deterrence. As nuclear strategist Thomas Schelling asserts, deterrence refers to how the threat of nuclear retaliation forestalls an enemy’s use of nuclear weapons. [8] As of July 2022, the TPNW has only 86 signatories and 66 states parties, which excludes all nations officially recognized as, or suspected of, possessing nuclear weapons. [9] Essentially, the treaty provisions are not binding for any of the nuclear armed states such as China, France, Russia, the United States, India, and Pakistan. Besides declining to sign, several non-participating nations have actively opposed the TPNW. For example, the North Atlantic Treaty Organization (NATO) members declared in 2021 that the TPNW “is inconsistent with the alliance’s nuclear deterrence policy” and “does not take into account the current security environment.” [10] At the same time, the United States, a quintessential NATO nation, delivered letters to participating nations to pressure them to revoke their ratification. [11] None of these nuclear armed states show any sign of reversing their stances on nuclear abolition since they justify their possession through the deterrence theory. 

There are key fallacies in this theory of nuclear deterrence. As states expand their nuclear capability to enable retaliatory threats, they fuel arms races. This prompts brinkmanship, or the exercising of “observable probabilistic threats” to “prompt the victim to make concessions,” in any serious crisis. [12] Additionally, ambiguous threats and miscalculated motives can escalate conventional warfare to the threshold of nuclear exchanges. In spite of this, deterrence unheedingly assumes optimal rationality and unimpaired cognitive ability, rare qualities during times of war or crises. Nevertheless, as the TPNW lacks concrete mechanisms for the balanced reduction of weapons and verification afterwards, nuclear weapon states are unwilling to surrender their deterrent without the guarantee that their rivals are doing the same. Therefore, although nuclear deterrence can plausibly fail through accident, miscalculation, or intent, nuclear-weapon states continue to cling to this theory and reject the TPNW, hindering its success. 

Even if the TPNW were to surmount its political obstacles to achieve universal ratification, the inevitable conflict between national sovereignty and international enforcement would still inhibit its practical effectiveness. This can be seen by comparing the TPNW to its more successful predecessor, the Biological Weapons Convention (BWC). Enacted in 1975, the BWC has been ratified by 183 states, who have agreed not to “develop, produce, stockpile or otherwise acquire or retain” biological weapons. [13] Despite this universality, even after numerous rounds of negotiations, the BWC failed to develop provisions that accurately verify whether countries are complying with their obligations. For example, in 1981, the United States accused the Soviet Union of supplying mycotoxins to Laos and Cambodia to be used against resistance forces. [14] The UN Secretary-General subsequently appointed two expert groups, but their investigations were inconclusive due to insufficient fresh forensic evidence and limited access to the affected sites. [15] The BWC’s lack of a formal verification regime resulted in unconfirmed and unpunished violations. Similarly, the TPNW faces insurmountable challenges in establishing a practical enforcement mechanism. It contains vague wording on the verification protocols and scant language on nations’ obligations beyond working “towards the total elimination of nuclear weapons.” For instance, to achieve “the purpose of verifying the irreversible elimination of its nuclear-weapon programme,” Article 4 merely requires each nation to “cooperate with the competent international authority,” without specifying the name of the authority or the means of cooperation. [16] Thus, even if the TPNW gained wider political support, it continues to face similar logistical obstacles as the BWC in verifying compliance.  

Another critical barrier to the TPNW’s enforcement is the lack of precedence outlawing nuclear weapons in customary international law. The International Court of Justice (ICJ) and International Criminal Court (ICC), who rule on international law, hold the power to penalize offending parties and are expected to enforce a nuclear ban. However, in 1966, the ICJ rendered a consequential Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. [17] The Court concluded that “the use of nuclear weapons could not be seen as specifically prohibited” on the basis “of customary and conventional law.” [18] The Court did not find that non-recourse to nuclear weapons constituted the expression of opinio juris, an opinion of law or necessity. [19] While advisory opinions are not binding, they are “associated with the ICJ’s authority and prestige, and a decision by the organ or agency concerned to endorse an opinion is as it were sanctioned by international law.” [20] Hence, the ICJ’s advisory opinion undermines the TPNW’s scope to legally and internationally ban nuclear weapons. Similarly, the Rome Statute of the ICC does not explicitly criminalize entire categories of weapons of mass destruction (WMDs), biological, chemical, nuclear or otherwise. When the ICC prosecutes individuals for war crimes, the means of the crime does not form the core of the charge. Instead, the nature of the crime (e.g., causing unnecessary suffering, intentionally attacking a civilian population) is ruled illegal. This makes it difficult for the TPNW to gain legitimacy and international support since it focuses solely on the means (the weapon being used), such as demanding nations to “eliminate their nuclear weapons programme.” [21] Thus, individuals who authorize nuclear weapons in the name of national protection are unlikely to be held accountable in international courts, despite their clear violation of the TPNW. 

Ultimately, the TPNWis unlikely to go beyond its symbolic role to concretely achieve its objective of abolishing nuclear weapons, mainly because political, logistical, and legal barriers prevent substantial participation and effective enforcement. As the crisis in Ukraine reminds us of the impermanence and fragility of peace in a world with nuclear weapons, we must establish alternatives to the TPNW that truly pave the way forward for international peace and security, making up for its history of shortcomings.

edited by Andrea Ruiz

Sources:

[1] Stephen Blank, “Russian Nuclear Strategy in the Ukraine War: An Interim Report,” National Institute For Public Policy Information Series, no. 525 (June 22, 2022): 4.

[2] “Treaty on the Prohibition of Nuclear Weapons” (hereafter TPNW), opened for signature August 9, 2017, United Nations Treaty Series Online, registration no. 56487, https://treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf.

[3] “Treaty on the Non-Proliferation of Nuclear Weapons,” opened for signature July 1, 1968, Treaty Series: Treaties and International Agreements Registered of Filed and Recorded with the Secretariat of the United Nations 729, no. 10485 (1974): 172, https://treaties.un.org/doc/Publication/UNTS/V olume%20729/v729.pdf.

[4] Nina Tannenwald, “The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-Use.” International Organization 53, no. 3 (1999): 433–68.

[5] Harald Müller and Carmen Wunderlich. “Nuclear Disarmament without the Nuclear-Weapon States: The Nuclear Weapon Ban Treaty.” Daedalus 149, no. 2 (2020): 171–89.

[6] Tom Sauer and Mathias Reveraert, “The potential stigmatizing effect of the Treaty on the Prohibition of Nuclear Weapons,” The Nonproliferation Review 25, no. 5-6 (2018): 437-455. 

[7] Tannenwald, “The Nuclear Taboo,” 433-68.

[8] Anne Harrington “Power, violence, and nuclear weapons,” Critical Studies on Security 4, no. 1 (2016): 98.

[9] “Signature and ratification status,” International Campaign to Abolish Nuclear Weapons, 2022, https://www.icanw.org/signature_and_ratification_status#:~:text=The%20Treaty%20on%20the%20Prohibition,signatories%20and%2066%20states%20parties. 

[10] Gabriela Rosa Hernández and Daryl G. Kimball, “States-Parties Meet on Nuclear Arms Ban Treaty,” Arms Control Association, July/August 2022, https://www.armscontrol.org/act/2022-07/news/states-parties-meet-nuclear-arms-ban-treaty.

[11] Alicia Sanders-Zakre and Seth Shelden, “How the Treaty on the Prohibition of Nuclear Weapons Impacts the United States, and Why the United States Must Embrace its Entry into Force,” Journal of International Affairs, June 15, 2021, https://jia.sipa.columbia.edu/online-articles/how-treaty-prohibition-nuclear-weapons-impacts-united-states-and-why-united-states.

[12] Michael Schwarz and Konstantin Sonin, “A Theory of Brinkmanship, Conflicts, and Commitments,” Journal of Law, Economics, & Organization Vol. 24, no. 1 (2008): 163-183.

[13] “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction,” opened for signature April 10, 1972, United Nations Treaty Series Online, registration no. 14860, https://treaties.un.org/pages/showDetails.aspx?objid=0800000280101653.

[14] “Biological Weapons Convention (BTWC),” Nuclear Threat Initiative, April 30, 2022, https://www.nti.org/education-center/treaties-and-regimes/convention-prohibition-development-production-and-stockpiling-bacteriological-biological-and-toxin-weapons-btwc/.

[15] Gary Samore, “Nobody is Checking for Violations of the Biological Weapons Convention,” Global Biodefense, September 23, 2021, https://globalbiodefense.com/2021/09/23/nobody-is-checking-for-violations-of-the-biological-weapons-convention/.

[16] TPNW, Art. 4.

[17] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8). 

[18] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8).

[19] “Opinio Juris (International Law),” in Wex, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/opinio_juris_(international_law).

[20] “How the Court Works,” International Court of Justice, https://www.icj-cij.org/en/how-the-court-works.

[21] TPNW, Art. 4.