All Talk and No Action: The United Nations Declares a Ban Nuclear Weapons

By Bradley Harrah

On January 22, The Treaty on the Prohibition of Nuclear Weapons (“TPNW”) went into effect, with at least fifty countries ratifying the agreement.[1] The treaty is an attempt to remind countries seeking or currently possessing nuclear weapons that the international goal is for disarmament.[2] It does so by stating that countries are prohibited from producing, testing, acquiring, possessing or stockpiling nuclear weapons.[3] It also prohibits states parties from allowing another state to station, install, or deploy nuclear weapons in its territory.[4] Supporters of the ban suggest that this treaty will serve “to delegitimize nuclear weapons and reinforce global norms against use.”[5] Thus, the TPNW — fairly simply — seeks to totally eliminate nuclear weapons to ensure its destruction is never seen again.[6]

            Although this goal seems like an admirable one, the TPNW has received harsh criticism. Some detractors are concerned that it could undermine the Nuclear Non-Proliferation Treaty (“NPT”), regarded as the “bedrock of international efforts to stem the spread of nuclear weapons and technology,”[7] at a time where there is growing frustration with the results — or lack thereof — under the NPT.[8]

            Further, the notable parties absent from the agreement demonstrate an important point regarding the United Nations (“U.N”). No state with nuclear capability is a signatory to the TPNW, nor has any NATO member, or any other state that benefits from a nuclear umbrella agreement, signed it.[9] Although the U.N. is often looked to as the one to tackle the grave challenges facing the world, its “seeming inability to act to end the protracted crises that have driven untold human misery . . . is an indictment of the organization.”[10] This inability is driven — at least partially — by how it is structured.[11] To ensure participation by the most powerful states in the world body, the permanent members of the Council — China, France, Russia, U.K. and the U.S. — were granted the absolute right of veto.[12] Although Article 27(3) states that a permanent member of should refrain from voting where it is “a party to a dispute,”[13] in practice the permanent members have only selectively adhered to this restriction.[14] Because of this language and the fact that all permanent members of the Council are those that hold nuclear weapons, any enforcement action taken in the name of the TPNW would likely be quickly rejected by some or all of the permanent members of the Council.

            It remains to be seen whether the TPNW will serve its proper purposes to “delegitimize nuclear weapons and reinforce global norms against use.”[15] Importantly, however, it can be learned from this agreement and its application that without the support of those parties with an interest in holding onto its nuclear weapons, the U.N. has no “real power to execute [its] decisions and [the] norms adopted”[16] to finally reach nuclear disarmament.

[1] Bill Chappell, U.N. Treaty Banning Nuclear Weapons Takes Effect, Without the U.S. and Other Powers, npr (Jan. 22, 2021), https://www.npr.org/2021/01/22/959583731/u-n-treaty-banning-nuclear-weapons-takes-effect-without-the-u-s-and-others.

[2] Id. See also Treaty on the Prohibition of Nuclear Weapons art. 1, July 7, 2017, 57 I.L.M. 347.

[3] Chappell, supra note 1. See also Treaty on the Prohibition of Nuclear Weapons, supra note 2.

[4] Durward Johnson & Heather Tregle, The Treaty on the Prohibition of Nuclear Weapons and Its Limited Impact on the Legality of Their Use, Just Sec. (Dec. 7, 2020), https://www.justsecurity.org/73711/the-treaty-on-the-prohibition-of-nuclear-weapons-and-its-limited-impact-on-the-legality-of-their-use/.

[5] Isabelle Williams, Global Perspectives on the Nuclear Weapons Ban Treaty, Nuclear Threat Initiatives (Aug. 3, 2017), https://www.nti.org/analysis/atomic-pulse/global-perspectives-nuclear-weapons-ban-treaty/.

[6] Johnson & Tregle, supra note 4.

[7] Williams, supra note 5.

[8] See, e.g., The NPT: From Promise to Reality, Eurasia Rev. (Mar. 29, 2021), https://www.eurasiareview.com/29032021-the-npt-from-promise-to-reality-oped/ (“The NPT is to a large extent responsible for the fact that relatively few countries beyond those recognized by it decided to obtain nuclear weapons. However, the continuing lack of implementation of disarmament obligations contained therein fuels mistrust and dissatisfaction. This failure contributes to a vexing decrease of confidence in the Treaty’s ability to meet the security challenges of the current age and in particular the threat represented by the very existence of nclear weapons.”).

[9] Johnson & Tregle, supra note 4.

[10] Helen Clark, The UN Is Failing — States Must Back Off and Give Its Leader the Power to Act, The Guardian (Sept. 13, 2017), https://www.theguardian.com/global-development/2017/sep/13/the-un-united-nations-is-failing-give-its-leader-real-power-to-act-helen-clark.

[11] See id. (“Some of its constraints are structural, like the veto power on the security council given to five nations when the charter was written in 1945. That prevents effective action on peace and security – even when an overwhelming majority of the security council and member states wants it.”).

[12] Sec. Council Rep., The Veto 2 (2015). See also U.N. Charter art. 27.

[13] U.N. Charter art. 27, ¶ 3.

[14] Sec. Council Rep., supra note 12.

[15] Williams, supra note 5.

[16] Interview by Rajit Sengupta with Henning Melber, Extraordinary Professor of the Dep’t of Pol. Scis., Univ. of Pretoria (Apr. 25, 2019), https://www.downtoearth.org.in/interviews/governance/-un-does-not-have-real-powers-to-execute-its-decisions--64185#:~:text=The%20problem%20of%20the%20UN,by%20the%20UN%20Security%20Council.&text=One%20should%20not%20blame%20the,states%20and%20their%20selfish%20policies.