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The Relationship of the 2017 Treaty on the Prohibition of Nuclear Weapons with other Agreements: Ambiguity, Complementarity, or Conflict?

Published on August 1, 2017        Author: 
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As discussed in Dan Joyner’s recent blog entry, the Treaty on the Prohibition of Nuclear Weapons was adopted by 122 States at a United Nations diplomatic conference in New York on 7 July 2017. Article 18 of the Treaty addresses its “relationship with other agreements”. There is, though, an ongoing debate as to the implications of this provision. On 7 July 2017, following the adoption of the Treaty by participating states in the United Nations diplomatic conference, Singapore (the sole abstention) stated in its explanation of vote that phrasing in the article was “ambiguous”. In this blog entry, I argue that this claim is unfounded.

Article 18 is based on a corresponding provision in Article 26(1) of the 2013 Arms Trade Treaty (ATT), the intent of which was to ensure that ATT states parties could adopt, or be party to, treaties and other binding agreements governing the trade in conventional arms and ammunition but that they could not lawfully implement any provisions under these other agreements if the obligations therein were inconsistent with their obligations in the ATT.

In the first draft of the Treaty on the Prohibition of Nuclear Weapons (22 May 2017), it was stipulated in Article 19 that it “does not affect the rights and obligations of the States Parties under the Treaty on the Non-Proliferation of Nuclear Weapons”. Thus, it was apparent from the outset that the relationship between the future Treaty and the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) could be a bone of contention during the negotiations. This was borne out in practice in the June–July 2017 diplomatic conference.

With respect to relevant “obligations”, Article 1(b) and (c) of the Treaty on the Prohibition of Nuclear Weapons, as adopted, is taken verbatim from Articles I and II of the NPT, respectively. In addition, although the precise formulations differ, there are clear prohibitions on assisting any of the prohibited activities in both the NPT and the Treaty on the Prohibition of Nuclear Weapons. Read the rest of this entry…

Filed under: Arms Control, Nuclear Weapons
 
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The Treaty on the Prohibition of Nuclear Weapons

Published on July 26, 2017        Author: 
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On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance. Read the rest of this entry…

 

Capitulation in The Hague: The Marshall Islands Cases

Published on October 10, 2016        Author: 
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When questions around nuclear weapons are brought before the ICJ, we don’t expect easy answers – too far apart are the realities of power politics from any defensible conception of what the world ought to look like, and international law is caught in the middle. In the 1996 Advisory Opinion on the legality of the use of nuclear weapons, the Court gave this fundamental tension an expression, even if it came up with answers (or non-answers) that left many dissatisfied. In this week’s judgment in the cases brought by the Marshall Islands – on the obligation to pursue nuclear disarmament – it does not take up the challenge at all. It instead evades the problem, and hides its evasion behind a façade of formalist legal reasoning.

As Christian Tams has already sketched in his first reaction to the judgment on this blog, the cases were dismissed on the grounds that no ‘dispute’ existed between the Marshall Islands and the UK, India and Pakistan. This is novel not only because never before has an entire case been dismissed on these grounds by the ICJ, but also because it stretches the interpretation of a ‘dispute’ beyond previous understandings: a dispute now requires some form of ‘objective awareness’ of the respondent state prior to the filing of the case. It is true that the requirement of an existing dispute has gained greater relevance in recent years, has played a consequential role in a number of cases, and has taken on a somewhat wider meaning than in earlier jurisprudence. Read the rest of this entry…

 

Whose Security is it Anyway? Towards a Treaty Prohibition of Nuclear Weapons

Published on May 31, 2016        Author: 
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On Friday, 13 May 2016, the UN’s Open Ended Working Group (OEWG), convened pursuant to UNGA resolution 70/33 (7 Dec 2015) and mandated, inter alia, to “substantively address concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons”, closed its second session with a majority of states calling for negotiations of a legally binding instrument (or instruments) to prohibit nuclear weapons to start in 2017.

Although (or perhaps because) the nuclear-armed states have chosen not to play ball, for the first time in decades, a treaty outlawing nuclear weapons is a real possibility. The OEWG, which will meet for a third time in August to agree on recommendations to the UNGA, and the ensuing tug-of-war in the UNGA’s First Committee in October, offer an historic opportunity for multilateral nuclear disarmament negotiations to take a big step forward. The reframing of nuclear disarmament as a humanitarian concern has been instrumental in generating strong momentum in support of negotiations. This post surveys some of the legal controversies that arose during the OEWG and explains why, from a humanitarian disarmament perspective, a treaty prohibition of nuclear weapons is both imperative and an effective disarmament measure, even without the participation of the nuclear-armed states.

Open to all, the OEWG’s May session has been attended by 100 states, as well as international organizations and civil society representatives, including survivors of the atomic bombings. None of the nuclear-armed states, i.e. the Nuclear Weapon States (NWS) recognized under the 1968 Nuclear Non-Proliferation Treaty (NPT) –China, France, Russia, the UK and the US – nor the DPRK, India, Israel or Pakistan, participated, casting further doubt on the good faith performance of nuclear disarmament obligations by the respondents in the RMI cases pending before the ICJ.

There is general agreement that the ultimate objective is a world free of nuclear weapons. To that end, all states parties to the NPT (and arguably, all states) have a legal duty to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” pursuant to Art. VI, NPT and customary international law. Views diverge, however, on the pathways, means and urgency with which this goal should be attained. Read the rest of this entry…

 

Corbyn, Trident, and the Letter of Last Resort: Legality of Use of Nuclear Weapons

Published on October 6, 2015        Author: 
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Jeremy Corbyn’s election to the leadership of the Labour Party in the United Kingdom by a landslide victory last month has renewed discussions in the UK about the ‘nuclear deterrent’. Corbyn, a long time anti-war activist and Vice-Chair of the Campaign for Nuclear Disarmament (CND) has, for many years, taken a very public and unequivocal stance against the use of nuclear weapons and in favour of scrapping the UK’s Trident nuclear weapons system. The Trident system is composed of submarine-launched ballistic missiles carried by four Vanguard-class submarines: HMS Vanguard, HMS Victorious, HMS Vigilant, and HMS Vengeance. One of those submarines is constantly on patrol somewhere around the globe. During the recent Labour Party conference, the party failed to take a position in favour of scrapping Trident, but its leader clearly and unequivocally stated that should he become Prime Minister of the UK, he would not use nuclear weapons. For this he was criticized both from within his own party, and beyond, as his statement would mean that were he to become Prime Minister, the UK would have effectively given up the possibility of any deterrent value of its nuclear arsenal.

It might be thought that even if Corbyn were to become Prime Minister the circumstances in which he would have to make a call as to whether to use nuclear weapons are very remote. Far from it! Each new Prime Minister of the UK must decide on the use of nuclear weapons in his or her first few days in office! This is when each new UK Prime Minister must draft the so-called ‘Letter of Last Resort’. This letter contains an instruction from the Prime Minister (indeed the final instruction) to the commanders of the Royal Navy submarines carrying the Trident system. The letter sets out what the commander is to do in case Britain has suffered a nuclear attack that has effectively destroyed the British state, resulted in the death of the Prime Minister and his or her nominated deputies, and led to a loss of contact between the submarine and the UK. There are a number of checks that must be carried out before the commander can presume that the UK has been attacked so devastatingly that nothing of the state and the chain of command remains. Apparently, one of those checks is to establish that BBC Radio 4 is no longer broadcasting! At that stage, the commander of the submarine is to obtain and fulfill the order stated in the letter of last resort, which is kept in the ship’s safe. No letter of last resort has been published. Each one is destroyed when a new PM takes office and issues a new letter of last resort. However, we do have some idea of the options available to the PM, which range from ‘scuttle the ship’, to ‘find and join the US or Australian Navy’, ‘retaliate’ or perhaps even ‘use your judgement’. (For a serious discussion of the Letter, listen to this BBC Radio 4 programme, for a more humorous discussion of the nuclear deterrent, watch this) .

Presumably, Corbyn’s letter of last resort will not involve a command to use the nuclear weapons aboard the vessel. However, it is interesting to consider whether an order to retaliate, in the circumstances in which a letter of last resort is actually opened, would be legal under public international law. To be sure, if such horrendous circumstances were to occur, we would be right at the vanishing point of the utility of law. Indeed, law, as well as other frameworks for organizing human society, would have failed us. However, thinking about whether a use of nuclear weapons (indeed any use of force) would be lawful in those circumstances helps us to understand what we think the purpose of the right of self-defence is, and how it ought to operate in international law. Read the rest of this entry…