Editors\u2019 note: This is the second of a four-part post on legal considerations applicable to nuclear weapons.<\/p>\n
In the first part<\/a> of this post, the fundamental division of opinion between the States that possess nuclear weapons and those that consider such weapons to be inherently unlawful was noted and explored. The post recognised that academic opinion also reflects these key opposing perspectives. The author suggested that the number of militarily significant States that either possess nuclear weapons or that see themselves as benefiting as umbrella States from the security derived from allies\u2019 nuclear arsenals precludes the formation of a customary law rule prohibiting their possession.<\/p>\n In this second part of the post, other manifestations of this Spaltung, or division, are analysed, this time in order to try to work out what needs to happen for nuclear disarmament to morph from a commendable but, as some would see it in the current geostrategic context, improbable theoretical goal into a more broadly embraced objective with some prospect, however tenuous, of realisation.<\/p>\n The Non-Proliferation Treaty<\/p>\n The first manifestation to consider is the differing approaches that States have adopted to two key multilateral treaties. The Treaty on the Non-Proliferation of Nuclear Weapons<\/a> (NPT), as its name suggests, seeks to preclude the proliferation of nuclear weapons, other nuclear explosive devices, and the ability to manufacture or acquire such weapons. The Treaty aims to achieve this purpose by imposing reciprocal legal obligations on nuclear weapon States not to make such transfers and on non-nuclear weapon States not to seek to receive such transfers. While few international law provisions attract universal and permanent adherence, the 191 States<\/a> that at the time of writing are parties to the NPT have contributed positively to limiting the growth of nuclear weapon States to a known total of nine.<\/p>\n It is therefore perhaps noteworthy that the five permanent members of the UN Security Council\u2014China, France, the Russian Federation, the United Kingdom and the United States (P5)\u2014in their January 2022 joint Nuclear Statement<\/a>, underlined that a nuclear war cannot be won and must never be fought. The Statement also reaffirmed their commitment to NPT and to Article VI of that treaty, asserted that none of their nuclear weapons are targeted at each other or at any other State and expressed the \u201cdesire to work with all states to create a security environment more conducive to progress on disarmament with the ultimate goal of a world without nuclear weapons with undiminished security for all.\u201d Observers will no doubt reflect that this high-minded text was being adopted only a very few weeks before the Russian invasion of Ukraine, and they will inevitably wonder about the sincerity of at least some of the States when participating in the Statement.<\/p>\n It is equally significant that NATO issued<\/a> its Strategic Concept in 2022, in which it made clear that the purpose of its nuclear capability is to preserve peace, prevent coercion, and deter aggression. This and the P5 Statement provide the context for considering the key provisions of the NPT.<\/p>\n Articles I and II of that treaty contain the reciprocal non-proliferation obligations that are most vitally important to securing the purposes of the Treaty. Article I requires nuclear weapon States directly or indirectly not to transfer to any recipient nuclear weapons or other nuclear explosive devices or control over such weapons or devices. It also obliges nuclear weapon States not to assist, encourage, or induce non-nuclear weapon States to receive or acquire control over such weapons or devices. Correspondingly, Article II requires non-nuclear States not directly or indirectly to receive the transfer of such weapons or devices or of control over them from any transferor and not to manufacture or acquire them or seek assistance with such manufacture or acquisition.<\/p>\n Article III deals with the important safeguards agreements between non-nuclear weapon States and the International Atomic Energy Agency, by trying to ensure that by-products of the lawful uses of nuclear energy are not diverted to create nuclear weapons. It is, however, Article VI that is of central importance to the current discussion. It stipulates, \u201cEach of the Parties to the Treaty undertakes to\u00a0pursue negotiations in good faith on effective measures\u00a0relating to cessation of the nuclear arms race at\u00a0an early date and to nuclear disarmament, and on\u00a0a treaty on general and complete disarmament under\u00a0strict and effective international control.\u201d<\/p>\n The Treaty on the Prohibition of Nuclear Weapons<\/p>\n It was, among other factors, the dissatisfaction of non-nuclear weapon States with the lack of progress under Article VI that led to the negotiation and adoption of the Treaty on the Prohibition of Nuclear Weapons<\/a> (TPNW). That Treaty bans possession, use, and a lengthy selection of other activities associated with nuclear weapons and other nuclear explosive devices. The Preamble to the Treaty makes it clear that key purposes of the instrument are to achieve general disarmament and, more specifically, achieve and maintain a world free from nuclear weapons.<\/p>\n At the time of writing, no nuclear weapon States have become party to the TPNW, no nuclear umbrella States have become party, and, so far as is known, no nuclear weapons have been destroyed as a direct result of the adoption of the Treaty. Importantly, under Article I(1)(g), a State Party must not, \u201cAllow 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.\u201d Under Article II(1)(c), States Parties must declare whether other States have nuclear weapons on the State Party\u2019s territory, and Article IV(4) deals with the setting of deadlines for the removal from State Party territory of nuclear weapons belonging to another State.<\/p>\n Duties of this kind are understandable given the declared purposes of the TPNW, but those duties may be inconsistent with other treaty obligations owed by the State Party. For instance, other obligations to allies or coalition partners, as well as with other treaty obligations owed by the State Party, say to allies or to coalition partners. Such obligations as well as the TPNW provisions referred to in the previous paragraph may therefore dissuade allies with nuclear weapon States from becoming parties to TPNW. It is therefore also worth noting that NATO, in a statement<\/a> dated December 15, 2020, has stated its opposition to TPNW, and it is clear that NATO\u2019s preference is for NPT, taking the view that the latter treaty provides the only credible path towards nuclear disarmament.<\/p>\n Some observers will no doubt feel that there is more than an element of \u201cpicking and choosing\u201d in this declared preference. To express a preference for the non-proliferation regime while conspicuously failing to make progress on one of its important obligations, namely Article VI, might seem rather disingenuous to some. Perhaps, therefore, this is an area in which nuclear weapon States, however belatedly, should be seen to take the initiative. It is thus with considerable hesitation that the author offers the proposals set forth in the third post in this series.<\/p>\n As paragraph 3 of the January 2022 P5 Joint Statement<\/a> declares,<\/p>\n We reaffirm the importance of addressing nuclear threats and emphasize the importance of preserving and complying with our bilateral and multilateral non-proliferation, disarmament, and arms control agreements and commitments.\u00a0We remain committed to our Nuclear Non-Proliferation Treaty (NPT) obligations, including our Article VI obligation \u201cto 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.\u201d<\/p>\n Some non-nuclear weapon States, and perhaps a number of readers, will doubt the sincerity of paragraph 3 and will reflect, no doubt, that an ongoing commitment to something on which one seems determined to achieve little or no progress is, in truth, no commitment at all. That is as may be. Paragraph 3 is, however, a useful assertion that can be employed to put pressure on the P5 States that made it, and maybe through them put pressure on other nuclear weapon States. Such pressure will only, however, achieve anything if a realistic method or pathway for achieving progress is being offered. The third and final post in this series considers what a realistic pathway might look like and how it might be pursued. But a number of things need to be said before we get to that concluding discussion.<\/p>\n Nuclear Disarmament<\/p>\n