Rebuke the Nuke: New UN Treaty Banning Nuclear Weapons Becomes Law

By: Andrew Malec

“The most dangerous weapons on earth”[1] were banned by international law when 122 Member Nations of the United Nations voted to approve the Treaty on the Prohibition of Nuclear Weapons (hereinafter “TPNW”).[2] The TPNW was adopted by the General Assembly on July 7, 2017 and received its 50th ratification from Honduras on October 24, 2020.[3] This final accession prompted the 90-day waiting period, and thus, the Treaty went into full effect on January 22, 2021. In addition to the TPNW, the U.N. has passed various other treaties addressing the use of nuclear weapons, including: The Treaty on the Non-Proliferation of Nuclear Weapons, the Partial Test Ban Treaty, and the Comprehensive Nuclear-Test Ban Treaty.[4] Each of these initiatives were taken by the U.N. to continually promote human rights and to recognize the devastating impact that the use of nuclear weapons can have on both humans and the planet.[5]

Eliminating nuclear weapons has been a goal of the United Nations since 1946, with the passage of its first resolution which established the United Nations Atomic Energy Commission (hereinafter “UNAEC”). The purpose of the resolution and the creation of the UNAEC was to make proposals “for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.”[6] Nuclear weapons only been used twice in history—namely, the bombings of Nagasaki and Hiroshima at the end of the World War II.[7] It is estimated that more than 100,000 individuals were killed in these acts, demonstrating the sheer destructiveness of this weaponry.[8] Specifically recognizing the humanitarian nature of the problem was first addressed by the U.N. in the 2010 Review Conference of the Parties to the Treaty on Non-Proliferation of Nuclear Weapons, “expressed its deep co concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirmed the need for all States at all times to comply with applicable international law, including international humanitarian law.”[9] Two years later, the U.N. adopted another resolution, Taking Forward Multilateral Nuclear Disarmament Negotiations, which created “an open-ended working group to develop proposals to take froward multilateral nuclear disarmament negotiations for the achievement and maintenance of a world without nuclear weapons.”[10]

Adding to the U.N.’s history of opposition to the use of nuclear weapons, the purpose of the TPNW is to completely eliminate nuclear weapons.[11] Many nongovernmental organizations (hereinafter “NGOs”) played a large role in supporting the ban on nuclear weapons, including the International Campaign to Abolish Nuclear Weapons (hereinafter “ICAN”).[12] Given the U.N.’s sentiment about nuclear weapons, Article 4 of the Treaty states:

[e]ach State Party that owns, possesses or control nuclear weapons or other nuclear explosive devices shall immediately remove them from operational status, and destroy them as soon as possible but not later than a deadline to be determined by the fist meeting of State Parties, in accordance with a legally binding, time-bound plan for the verified and irreversible elimination of that State Party’s nuclear-weapons-programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities.

In order to achieve this seemingly ambitious goal, the TPNW states that signatories must “take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Treaty undertaken by persons or on territory under its jurisdiction or control.”[13] Generally, the Treaty places restrictions on the possession, development, testing, stockpiling and even the threat of using nuclear weapons.[14] The Treaty also “bans any transfer or use of nuclear weapons or nuclear explosive devices” as well as to “promote the treaty to other countries.”[15]Furthermore, the Treaty includes several environmental protection provisions that aim to restore the environment where nuclear weapons have contaminated due to nuclear testing.[16] Article 6 of the Treaty is dedicated to environmental remediation stating that the States “with respect to areas under [their] jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall take necessary and appropriate measures towards the environmental remediation of areas so contaminated.”[17] Where humanitarian law is concerned, the TPNW states:

 [e]ach State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age-and-gender-sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.

Although many Member States have agreed to ratify the treaty, the most recent countries, prior to Honduras in October, being Nigeria, Malaysia, Ireland, Malta, and Tuvalu,[18] there are several notable non-supporters of the Treaty. Countries that have not supported the TPNW include the United States, China, Russia, Britain, France, Pakistan, North Korea, and Israel—all of which are known or thought to possess nuclear weapons.[19] The United States was particularly vocal about its opposition to the Treaty “urging” the States that have ratified the Treaty to rethink their decisions.[20] Additionally, the thirty Member Countries of NATO opposed the ratification of the Treaty.[21] Interestingly, Japan has not been supportive of the Treaty, citing the “sharply divided” nuclear and non-nuclear States’ position on the issue,[22] as well as the difficulties the country sees in the implementation of an outright ban on nuclear weapons.[23]

Overall, the ramifications of the TPNW remain to be seen.[24] With strong opposition from many world powers such as the United States, China, and other NATO Member Countries, it is unclear how this ban will play out.[25] Further, the Treaty has garnered some criticism as well because, although the Treaty is clear in its desire to stigmatize the use of nuclear weapons, the Treaty itself down not lay out a procedure for actually disarming countries.[26] Regardless, the TPNW is still the most ambitious move by the U.N. to accomplish the goal of de-legitimizing, and ultimately, disarming nuclear countries.

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[1] Nuclear Weapons, United Nations: Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/ (last visited Jan. 30, 2021).

[2] Edith M. Lederer, First-Ever Treaty to Ban Nuclear Weapons Enters into Force, APNews (Jan. 22, 2021) https://apnews.com/article/international-news-nuclear-weapons-international-law-united-nations-gun-politics-7d4f3e3339a735919f9299b0414f9d0a; Nuclear Weapons, United Nations: Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/ (last visited Jan. 30, 2021).

[3] Treaty to Ban Nuclear Weapons Made Official with 50th UN Signatory, The Guardian (Oct. 25, 2020) https://www.theguardian.com/world/2020/oct/25/treaty-banning-nuclear-weapons-made-official-with-50th-un-signatory/.

[4] Nuclear Weapons, United Nations: Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/ (last visited Jan. 30, 2021).

[5] Id.

[6] G. A. Res.  1(I), ¶ 5(c) (Jan. 24, 1946).

[7] See Seren Morris, How Many People Died in Hiroshima and Nagasaki, Newsweek (Aug. 3, 2020) https://www.newsweek.com/how-many-people-died-hiroshima-nagasaki-japan-second-world-war-1522276

[8] The Atomic Bombing of Hiroshima and Nagasaki, Atomicarchive.com, https://www.atomicarchive.com/resources/documents/med/med_chp10.html (last visited Jan. 30, 2021).

[9] Nuclear Weapons, United Nations: Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/ (last visited Jan. 30, 2021).

[10] Id.

[11] See Treaty on the Prohibition of Nuclear Weapons, Art. 4, ¶ 1.

[12] See The Campaign, icanw.org, https://www.icanw.org/the_campaign (last visited Jan. 30, 2021).

[13] See Id. at Art. 5, ¶  2.

[14] Nuclear Weapons, United Nations: Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/ (last visited Jan. 30, 2021).

[15] Edith M. Lederer, US Urges Countries to Withdraw from UN Nuke Ban Treaty, APNews.com (Oct. 21, 2020) https://apnews.com/article/nuclear-weapons-disarmament-latin-america-united-nations-gun-politics-4f109626a1cdd6db10560550aa1bb491.

[16] Id.

[17] See Treaty on the Prohibition of Nuclear Weapons, Art. 6, ¶. 2.

[18] Treaty to Ban Nuclear Weapons Made Official with 50th UN Signatory, The Guardian (Oct. 25, 2020) https://www.theguardian.com/world/2020/oct/25/treaty-banning-nuclear-weapons-made-official-with-50th-un-signatory

[19] Lederer, supra note 2.

[20] See Lederer, supra note 11.

[21] See Lederer, supra

[22] Id.

[23]Id.

[24] Michael Ruhle, The Nuclear Weapons Ban Treaty: Reasons for Scepticism¸ NATO.Int (May 19, 2017) https://www.nato.int/docu/review/articles/2017/05/19/the-nuclear-weapons-ban-treaty-reasons-for-scepticism/index.html.

[25] See id.

[26] See id.