Analysis

Published on November 24th, 2021 | by Roelien Donker

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PAX recommendations to the 2022 NPT RevCon: the TPNW

In the run up to the tenth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which will take place in early 2022, we will post a series of blogs in which we provide recommendations to States Parties for the upcoming Review Conference. In this blog, we will focus on the Treaty on the Prohibition of Nuclear Weapons (TPNW). PAX urges those States Parties to the NPT that have not yet signed and ratified the TPNW to do so without delay. If States Parties are not ready to join the TPNW, they should engage positively with the TNPW and recognize the treaty as an important piece of the international legal architecture. In this blog, we will further illustrate why States Parties to the NPT should join the TPNW.

The TPNW

In recent years, there has been a growing focus on the dangers of nuclear weapons and the major risk they pose. It was this concern about the catastrophic humanitarian consequences of the use of nuclear weapons that paved the way for the negotiation and adoption of the TPNW in 2017, which entered into force on January 22, 2021. Like the NPT itself, the preamble of the TPNW expresses deep concern about the “catastrophic humanitarian consequences” of nuclear weapons and recognizes the “consequent need to eliminate such weapons completely.”

The TPNW is of great significance as it is the first treaty that makes nuclear weapons illegal in all respects under international law. More specifically, the TPNW prohibits not only the use of nuclear weapons, but also the development, testing, production, transfer, and possession of nuclear weapons. Furthermore, it forbids countries to assist or encourage others to engage in any of these activities. The treaty is also the first to put in place a framework for verifiably and irreversibly eliminating nuclear weapons, and for assisting the victims of their use and testing. Nuclear-weapon states (NWS) and non-nuclear weapon states (NNWS) allied with NWS (nuclear umbrella states) have, however, opposed the treaty and refused to sign it. 

The importance of the TPNW

It is of great importance, however, that all States Parties sign and ratify the TPNW. In doing so, States Parties will send a clear message that nuclear weapons pose an existential threat to humanity and that only their elimination can bring security. Prohibiting nuclear weapons is, in the end, the only way for States Parties to the NPT to achieve their shared objective of the total elimination of nuclear weapons. Additionally, the TPNW fills others gaps within the NPT, by also banning the development of nuclear weapons, prohibiting states parties from assisting, encouraging, or inducing behavior prohibited by the Treaty and prohibiting states parties from hosting the nuclear weapons of another state on their territories. 

Furthermore, treaties can be an effective vehicle for generating new international norms. History has shown that the prohibition of certain types of weapons facilitates progress towards their elimination. When certain weapons become prohibited, they are increasingly seen as illegitimate and lose their political status, and with this, it becomes harder for companies to continue to gather the resources needed to produce them. Moreover, the nested structure of international law means that a treaty may generate social pressures toward compliance even among states that have not signed or ratified a specific treaty. This is, for instance, illustrated by the Ottawa Treaty which prohibits the use, production, and trading of antipersonnel landmines. While a small group of countries, including landmine producers and users, remain formally outside the treaty, some of those countries, including China, India, Israel, Pakistan, Russia, South Korea, and the United States, have imposed restrictions on landmine exports. While the U.S. is not a member of the treaty, President George W. Bush announced in 2004 that the United States would eliminate all forms of “persistent” mines. US participation in the mine ban regime further deepened under President Obama, when the country pledged to observe the obligations of the Mine Ban Treaty, and the country even contributes to victim’s assistance and environmental remediation in relation to landmines. The U.S. has, for instance, invested more than $6.4 million in conventional weapons destruction funding for mine and unexploded bombs clearance, mine risk education, technical surveys and non-technical surveys of suspected hazard areas, and capacity building in Senegal between 2002 and 2019. Thus, this example illustrates that treaties can serve to generate a global norm even if not all states (immediately) join a specific treaty. 

Additionally, the TPNW offers countries that reject nuclear weapons the opportunity to turn their words into actions and escape the NPT grouping and shadow of ‘have nots’. While the NPT remains a cornerstone of the global nuclear disarmament and non-proliferation regime, the commitments that were made during the Review Conferences of 1995, 2000, and 2010 remain largely unfulfilled. By joining the TPNW, States Parties can become NPT implementers, as they have taken action to fulfil their NPT article VI responsibilities. This, in turn, has the possibility of continuing to shift dynamics in the NPT context – from the finger wagging reality of most contentious reviews, into a standing tall and demonstrating leadership opportunity for states.

Lastly, it is important for States Parties to sign and ratify the TPNW, as it is the first international treaty on nuclear weapons to address gender and nuclear weapons. As to where the NPT does not explicitly deal with the gendered effects of nuclear weapons, the TPNW recognizes the importance of the “equal, full and effective participation of both men and women” in attaining sustainable peace and security, acknowledges the disproportionate impact that nuclear weapons have on women and girls, and affirms the need to provide gender-sensitive assistance to individuals affected by the use or testing of nuclear weapons. By joining the TPNW, States Parties to the NPT can show that they support meaningful participation of women in nuclear disarmament and that they want to take effective steps to address the disproportionate harm of nuclear weapons on women and girls. 

Obstacles to joining the TPNW

NATO and the TPNW

The Netherlands was the only NATO state to participate in the negotiation of the TPNW in 2017 but ended up voting against the adoption for multiple reasons. One of the reasons put forward by the Dutch government was the incompatibility of the TPNW with the Dutch nuclear weapons task within NATO. This argument is invalid, however, as the treaty that forms the basis for NATO, the North Atlantic Treaty (1949), does not mention anything about nuclear weapons, meaning that from a legal perspective, the TPNW is compatible with the treaty that forms the basis for NATO. NATO’s nuclear policy is the result of a series of policy choices made over the years by NATO members. The Dutch adherence to nuclear sharing, for instance, is an individual political choice. In the past, however, there have also been other NATO states that ended their nuclear sharing agreements within NATO. This illustrates that NATO has been flexible in the past about countries changing their national policies in relation to nuclear weapons. NATO members already have a long history of adopting independent and divergent positions on nuclear weapons, including through the use of “opt-out” footnotes in alliance statements. 

Furthermore, since the matter of nuclear sharing is a policy matter rather than a legal matter, it is possible for NATO to take a different course when it comes to nuclear weapons. There is no legal reason that NATO member states cannot join the TPNW; doing so would not infringe any treaty obligation. Several academic institutions and government authorities within multiple member states have also confirmed this. While this would not be something that could be changed instantly, NATO’s nuclear policy could be altered for NATO members to be in compliance with the TPNW and therefore being a member of NATO and a party to the TPNW do not have to be mutually exclusive. As for what joining the TPNW would mean for the cooperation of NATO members with nuclear-armed allies within the alliance, this could best be sorted by one or more NATO members joining the TPNW and establishing practice and precedent along with other TPNW states parties, as was done with the treaties prohibiting anti-personnel landmines and cluster munitions.

Lastly, the current approach of dismissing the TPNW and refusing to engage with the TPNW will only limit NATO’s options, drive potential partners away, and make the goal of nuclear disarmament even more unattainable. In the end, the TPNW and NATO share the same objective, namely the total elimination of nuclear weapons.The best way for NATO members to create and maintain peace and security is by supporting efforts for the elimination of nuclear weapons. 

Compatibility with the NPT 

Some of the NWS have stated that their unwillingness to sign the TPNW stems from their concerns that the TPNW undermines the existing international security architecture. The Netherlands also argued that signing the TPNW would undermine the NPT, as the text of TPNW “places the [nuclear ban] treaty above the NPT” and because the treaty “partially overlaps with that of the NPT,” which, according to the Dutch government, creates “a recipe for competition and fragmentation when our efforts on disarmament should be concentrated.” The TPNW is, however, complementary to the NPT, as the treaty itself also acknowledges that the implementation of the treaty “shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty.” 

Similarly, the 1969 Vienna Convention on the Law of Treaties also states that if the parties to a later treaty do not include all parties to the earlier treaty, the later treaty does not change the existing treaty obligations for states that have not joined the new treaty. The TPNW does not replace the rights and obligations of the NPT States Parties that choose not to join the TPNW. For States Parties to the NPT that are also parties to the TPNW, their obligations under the TPNW complement their previously existing obligations under the NPT, as the NPT already contained these obligations, be that explicitly or implicitly. In fact, the TPNW demonstrates how Article VI commitments under the NPT can be fulfilled and presents an opportunity to further these obligations for states not yet party. Thus, from a legal point of view, the TPNW complements international humanitarian law and the non-proliferation regime and will not undermine the NPT. The TPNW itself also acknowledges the importance of the NPT in creating international peace and security. As a whole and in its preamble, the TPNW is a powerful statement of the moral, political, and legal norms that drive the abolition of nuclear weapons.

Another possible obstacle for the Netherlands in joining the TPNW is that they have expressed in the past that Article VI of the NPT calls for a specific sequencing of steps to reach the goal of a nuclear-weapons-free world. During the 2016 OEWG on nuclear disarmament, the Netherlands stated that they do support a ban on nuclear weapons but that this ban is the last step in a list of chronological steps to disarmament as outlined in Article VI. They argue that these steps are as follows: an end to the nuclear arms race, nuclear disarmament, and a treaty on general and complete disarmament under international control. Thus, they see a ban on nuclear weapons as something to be agreed upon in the future, but that first other steps need to be taken. This reading of Article VI is subjective, however, as Article VI does not indicate that these are separate chronological steps that States Parties need to take. In fact, the TPNW could be seen as a measure that helps to further nuclear disarmament and put an end to the nuclear arms race.  

Safeguards and verifiability

Additionally, the Netherlands refused to join the TPNW because they argued that the treaty is not verifiable and that it contains a safeguards standard that does not live up to International Atomic Energy Agency (IAEA) non-proliferation safeguards. In some instances, however, the TPNW’s language on nonproliferation safeguards is identical to the language used in the NPT and in other instances even stronger than that used in the NPT. Furthermore, nuclear disarmament under the TPNW does not lack verifiability. In fact, Article 4 of the treaty clearly requires legally binding verification measures to be applied to any disarmament procedure. The treaty does not allow for unverified disarmament and its verification provisions are far beyond those of the NPT, which does not include any. 

Support for the TPNW 

When the TPNW was being negotiated, there existed parliamentary and societal pressure for the Netherlands to participate in the negotiation of the treaty. In 2016, over 45,000 Dutch citizens signed the citizen’s initiative of PAX, ASN Bank and the Dutch Red Cross, by which they indicated their support for an international ban on nuclear weapons. As a result of the citizens’ initiative, the Dutch Parliament held a debate on a national ban on nuclear weapons, where it became clear that a vast majority of the Dutch House of Representatives wanted the Netherlands to start working internationally for a nuclear weapons ban. 

Furthermore, in January 2019, the Dutch foreign and defense ministers informed the Dutch House of Representatives that there are no legal obstacles within Dutch law that prevent the Netherlands from joining the TPNW. 

Additionally, a 2019 YouGov poll of four NATO states  (commissioned by ICAN) has shown that the majority of the population in Germany, Italy, the Netherlands and Belgium is strongly in favor of their country signing the TPNW. 66% of the Dutch respondents was in favor of signing the TPNW. Thus, it is clear that the people of Belgium, Germany, Italy, and the Netherlands want to see their governments join the TPNW. Additionally, several former leaders, including NATO secretaries general and defence and foreign ministers, have called on NATO states to join the TPNW. Multiple parliaments in NATO states have passed motions in support of the treaty and cities across the alliance have called on their governments to join the TPNW. Additionally, there also exists support for the treaty among civil society organisations and various religious leaders that have spoken out in favor of the treaty. The treaty is also supported by key NATO partners, such as Austria and Ireland in Europe and New Zealand and Thailand in the Asia-Pacific region. The list of member states to the TPNW will only grow, cooperation between NATO members and TPNW states parties is already a reality and will only increase in the future. 

Considering the above, PAX recommends that States Parties who have not yet joined the TPNW do so without delay and, if necessary, make changes to their policies and practices in order to respect the obligations and norms of the TPNW. If States Parties are not yet ready to join the TPNW, they should engage positively with the TNPW and its member states, by for instance, participating as observers during meetings on the TPNW. Additionally, States Parties should recognize the treaty as an important piece of the international legal architecture. Furthermore, even when states have not joined the TPNW, they should contribute to victim assistance and environmental remediation, following the example of the US regarding the landmine convention. Lastly, States should add the TPNW to the list of instruments States are called to support – like the entry into force of the Comprehensive Nuclear-Test-Ban Treaty, or the start of negotiations on a treaty on fissile materials.

The recent entry into force of the TPNW forms an important step in achieving a nuclear-weapons-free world. This new treaty is expected to have an impact on all states, as it furthers the norm that nuclear weapons should be eliminated. We are confident that the entry into force of this treaty will serve as an impetus to non-proliferation and nuclear disarmament.

Read more about why NATO member states should join the TPNW in the ICAN Report: “NATO: A Non-Nuclear Alliance

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About the Author

Roelien Donker has a bachelor's degree in Interdiscplinary Social Science and a master's degree in Conflict Studies and Human Rights from Utrecht University.



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