Q&A: Treaty on the Prohibition of Nuclear Weapons

The elimination of nuclear weapons and international law.

We believe it is a humanitarian imperative to ensure nuclear weapons are never used again.

Our conviction is driven by the unspeakable suffering and devastation caused by the atomic bombings of Hiroshima and Nagasaki, by the suffering Australia’s First Nations People experienced from the effects of nuclear weapons’ testing in their homelands, and by the increasing risk of nuclear weapons being used again by intent, miscalculation, or accident.

We are further driven by our unique humanitarian mandate to promote international humanitarian law (IHL), also known as the law of war, as framework of international laws designed to limit unnecessary human suffering during armed conflict. In our view, the use of nuclear weapons is incompatible with the rules of IHL which prohibit the use of weapons that cannot distinguish between civilians and military, and weapons that cause unnecessary suffering, superfluous injury or widespread, long-term and severe damage to the environment.

This view is based on an understanding that nuclear weapons cause unspeakable suffering, are impossible to control in terms of their effects, create a large and unnecessary risk of escalation of conflict, and pose a serious threat to the environment, to future generations and to the survival of humanity. 

As experienced first-responders to emergencies and catastrophes all over the world, we also know there is no viable emergency service or effective medical response plan for a nuclear detonation. Even as part of the world’s largest international humanitarian network, we would be unable to adequately respond to any use of nuclear weapons.

It is for these reasons and more, Australian Red Cross, as part of the broader International Red Cross and Red Crescent Movement, has been working to prohibit and eliminate nuclear weapons to guarantee they can never be used again.

The TPNW is the first legally binding international agreement to comprehensively ban nuclear weapons. Currently, 86 countries have signed the TPNW, expressing their intention to abide by the treaty. Of these, 66 countries have formally ratified the treaty, becoming legally bound to follow its provisions.

For the first time ever, State Parties to the treaty are banned from the use, threat of use, development, testing, production, manufacturing, acquisition, possession or stockpiling of nuclear weapons. The treaty also makes it illegal for these States to assist, encourage or induce anyone, in any way, to engage in any activity prohibited by the treaty.

The TPNW also provides for victim assistance and environmental remediation flowing from the use and testing of nuclear weapons.

By explicitly and unequivocally prohibiting the use of nuclear weapons, the treaty sends a powerful signal that the use of nuclear weapons would not only be unacceptable from a moral and humanitarian perspective, but also from a legal standpoint.

In addition to the TPNW, there are other nuclear weapons agreements with similar objectives, for example:

  • The Nuclear Non-Proliferation Treaty (NPT) seeks to prevent the spread of nuclear weapons and weapons technology (non-proliferation), to foster the peaceful uses of nuclear energy, and to further nuclear disarmament. The treaty also establishes a nuclear safeguards system under the responsibility of the International Atomic Energy Agency (IAEA) to verify compliance with the treaty. A total of 191 States have joined this treaty, including the five nuclear-weapon States.
  • The Comprehensive Nuclear-Test-Ban Treaty (CTBT) bans all nuclear test explosions. While this treaty has yet to enter into force, meaning its provisions are not yet legally binding, most States ban nuclear test explosions as international practice.
  • The Nuclear Free Zone Treaties, such as the South Pacific Nuclear Free Zone Treaty, establishes nuclear weapons free zones in particular regions.

However, no treaty other than the TPNW seeks to comprehensively and irreversibly ban nuclear weapons.

Under Article VI of the NPT, State Parties have an obligation to pursue multilateral negotiations on effective measures leading to nuclear disarmament. According to the International Court of Justice, this includes an obligation to conclude such negotiations and agree on nuclear disarmament measures. The TPNW was created as an effective disarmament measure with this NPT obligation in mind. By comprehensively banning nuclear weapons, the TPNW pursues the goal of complete disarmament by seeking to eventually eliminate all nuclear weapons.

The TPNW does not supersede or replace the NPT or other nuclear-non-proliferation treaties, but rather complements and strengthens the overall nuclear non-proliferation and disarmament framework initiated by the NPT. This understanding was reaffirmed at the first Meeting of State Parties to the TPNW in June 2022.

The TPNW bans the use, threat of use, development, testing, production, manufacturing, acquisition, possession or stockpiling of nuclear weapons. The treaty also makes it illegal to assist, encourage or induce anyone to engage in any activity banned by the treaty.

These prohibitions are set out under Article 1(1) of the TPNW.

Under Article 1(1) of the TPNW, each State Party to the treaty must never:

  • develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
  • indirectly or directly transfer such weapons or control over such weapons or devices to anyone;
  • indirectly or directly receive such weapons or control over such weapons or devices;
  • use or threaten to use such weapons or devices;
  • assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the TPNW;
  • seek or receive any assistance, in any way, from anyone to engage in any activity prohibited under the TPNW;
  • allow any stationing, installation or deployment of such weapons in its territory or place under its jurisdiction or control.

summarised extract from Articles 1(1)(a)-(g) of the TPNW.

Under Article 1(1)(e) of the TPNW, a State Party cannot assist, encourage or induce any other State, alliance, or other group to develop, test, produce, manufacture, otherwise acquire, possess, stockpile, transfer, deploy, receive, threaten to use, or use nuclear weapons or other nuclear explosive devices.

The International Committee of the Red Cross (ICRC) has released a briefing note on what this ban means. In their view, the ban to “assist, encourage or induce” covers a broad range of acts and omissions depending on the specific facts. These activities may involve:

  • planning or training with others for the use of nuclear weapons
  • agreeing operational plans or instructions permitting the use of nuclear weapons in multinational operations
  • requesting another State to use or threaten to use nuclear weapons
  • providing security or transport for nuclear weapons
  • exporting or otherwise transferring nuclear material or technology to those that may use these to develop nuclear weapons
  • financing prohibited activities such as the development, production or manufacture of nuclear weapons or other nuclear explosive devices.

In the ICRC’s view, these types of activities are only outlawed where a State Party intended to, or had knowledge their actions would, assist, encourage or induce another State to engage banned nuclear weapons activities.

Furthermore, a State Party may only be considered to have ‘assisted’, ‘encouraged’ or induced’ these types of activities, where there is a causal link between their actions and banned nuclear weapons activities. This means a State Party must either significantly contribute to a banned activity, or make the banned activities look significantly more attractive to nuclear-weapons States (either directly or indirectly).

Examples of activities that would likely not be banned include:

  • development, research, production, and use of nuclear energy for peaceful purposes
  • transfer of nuclear equipment, materials, and scientific and technological information for peaceful purposes
  • activity, research, and development for protection against chemical, biological, radiological and nuclear attacks
  • participation in security alliances and military cooperation arrangements with nuclear-weapons states, as long as this does not involve nuclear weapons.

Australian Red Cross, the ICRC and the broader Movement are of the view that the TPNW strengthens, rather than weakens, safeguards under the NPT.

Under Article III of the NPT, non-nuclear weapon States must adopt comprehensive safeguard agreements (CSA) with the IAEA. CSA’s allow the IAEA to independently verify that declared nuclear material is used exclusively for peaceful purposes, and not misused or diverted for nuclear weapons activities. These States also may voluntarily agree to an Additional Protocol to the CSA, which allows the IAEA to verify that States do not have any undeclared nuclear material or activities. The IAEA’s verification measures under these agreements include on-site inspections and visits, requests for information, and ongoing monitoring and evaluation.

Article 3 and 4 of the TPNW expands, strengthens and complements NPT safeguards by extending the obligation to maintain or conclude CSA’s to nuclear-weapons States as well as non-nuclear weapons States that join the TPNW. Further, while the adoption of Additional Protocols under the NPT is voluntary, the TPNW makes Additional Protocols legally binding for States that have already adopted its provisions as minimum safeguards under the NPT. This understanding has been read into the way Articles 3(1), 3(2), 4(1) and 4(3) of the TPNW have been worded.

Finally, Article 3 and 4 of the TPNW clarifies that its obligations are “without prejudice to any other additional relevant instruments adopted in future,”  meaning the TPNW would not undermine, or be inconsistent with any future safeguards concluded under other international frameworks such as the NPT.

It has been argued the safeguards under Article 4 of the TPNW, requiring nuclear-weapons States to either destroy their nuclear weapons before joining the treaty, or commit doing so by a particular deadline, are too vague. In our view, Article 4 to the TPNW provides a flexible and pragmatic safeguards approach which accommodates for the different circumstances of States possessing nuclear weapons.

Under Article 4 of the TPNW, nuclear-weapons State Parties must first destroy their nuclear weapons, then conclude and maintain a safeguard agreement with the IAEA which is “sufficient to provide credible assurance” that declared nuclear material is not diverted to nuclear weapons and they have no undeclared nuclear material or activities.

  • For State Parties that possessed nuclear weapons after the TPNW was adopted (on 7 July 2017) but destroyed them before they joined the treaty, they must enter a safeguards agreement within 18 months after the TPNW takes effect for them (also known as the “destroy then join” pathway).
  • For State Parties continuing to possess nuclear weapons at the time they join the treaty, they must remove them from operational status, adopt an elimination plan and destroy their nuclear weapons arsenal by a particular deadline in a verifiable and irreversible way. After this is done, these States can then enter into a nuclear safeguards agreement on exclusive use of nuclear material for peaceful purposes (the “join then destroy” pathway).

While Article 4 does not make explicit reference to the type of safeguards State Parties must adopt, these provisions still provide the most comprehensive elimination and safe-use requirements imposed on nuclear weapon states to date, while maintaining a flexible and pragmatic approach to operational realities.

However, for this to take effect, nuclear-weapons States will have to join the treaty, which they have not yet done.

Verification under the TPNW is a process to ensure States have complied with their treaty obligations to eliminate nuclear weapons.

Under Article 4(6) of the TPNW, a competent international authority must be designated to “negotiate and verify the irreversible elimination of nuclear-weapons programmes”.

While Article 4 provides for the purpose of the international authority as a negotiation, reporting and verification body, it leaves it to State Parties to negotiate the powers, competence, and capabilities of the authority.

While some have criticised the lack of detail, certain States believe the provision permits “cooperative transparency” by giving flexibility and adaptability for TPNW State Parties to develop an “incremental approach” on how to best operationalise an international authority pragmatically and representatively.

Following first Meeting of State Parties to the TPNW, State Parties agreed to discuss the designation of a verification body intersessionally in the 2022 Vienna Action Plan. We anticipate this will lead to fruitful discussions on the specific operations of a TPNW verification body and its processes.

Any States concerned about the efficacy of potential verification processes under the TPNW, should participate in discussions around designating a competent verification body.

There is already strong international rejection on the use of nuclear weapons as an unacceptable means of warfare from a moral, humanitarian and now, legal point of view.

But as long as nuclear weapons exist, there is a risk they may be used again by accident, miscalculation or intent. The ongoing threat posed by nuclear weapons, and the possibility they could be used, has increased in recent years to levels not seen since the Cold War. Growing tensions between nuclear-armed States and their allies, the development of new more powerful types of nuclear weapons, new or expanded roles of nuclear weapons in military plans and doctrine, and the vulnerability of nuclear command and control systems to cyber attacks all contribute to this risk.

These deeply concerning developments add to the urgency for all States to prohibit and eliminate nuclear weapons.

The TPNW is a starting point for the long-term efforts to achieve complete nuclear disarmament through elimination. While this cannot be done overnight, the treaty establishes clear standards, and a way forward to the total elimination of nuclear weapons to ensure they can never be used again.

While the TPNW is only binding on States that have joined the treaty, which currently does not include any nuclear-weapon States, we believe the treaty reinforces the stigma against the use of nuclear weapons, further disincentives their proliferation and strengthens the case for their elimination.

In addition to strengthening the taboo against use of nuclear weapons, the TPNW increases the pressure on the nuclear-weapons States to reduce and eliminate their nuclear arsenals, in line with their existing international commitments and obligations.

Increased membership of the TPNW also strengthens the understanding that the treaty is a concrete step towards fulfilling existing obligations under Article VI of the NPT to pursue negotiations on effective nuclear disarmament measures.

With 86 signatories and 66 State Parties to the TPNW at present and the increased willingness of non-State Parties engaging in processes like the Meeting of State Parties to the TPNW, normative support for the treaty will continue to grow, and the reputational implications of not joining this treaty will likely increase.

Further, we believe the participation of allies of nuclear-weapons States in the TPNW, will assist in breaking down of reluctance by such States in considering the potential application of the TPNW. It is through such incremental encouragement, pressure, and advocacy that we will have any hope of achieving universalisation of this treaty.

The TPNW also provides actors advocating the prohibition and elimination of nuclear weapons a powerful tool of influence to further stigmatize and de-legitimize nuclear weapons, and steadily build a robust global peremptory norm against them.

States who join the TPNW can continue participating in security alliances and military cooperation arrangements with nuclear-weapons States, as long as this does not involve nuclear weapons. Further, such States will need to stop engaging in nuclear-weapon-related military activities, including reliance on extended nuclear deterrence involving pledges by nuclear-weapon States to defend partners with nuclear weapons under a nuclear umbrella.

We call on nuclear-umbrella shielded States to re-orient their nuclear dependant security posture to one that is nuclear-weapons free.

The entry into force of the TPNW, which made the treaty legally binding for State Parties, is a historic milestone in our efforts to achieve a world without nuclear weapons. We must now work to promote broader support and adherence to the treaty’s prohibitions.

State Parties to the treaty should adopt national laws, policies and other measures to ensure full implementation of the TPNW. These States should also engage faithfully in TPNW processes and encourage other States to sign and ratify or accede to the TPNW.

States like Australia, which have not yet jointed the treaty should promptly sign, ratify or accede to, and faithfully implement the TPNW. We encourage States that have any concerns about the TPNW, to meaningfully engage in conversations about the treaty at both the international and national level. It was encouraging to see 34 States, including Australia, participated as observers at the first Meeting of State Parties to the TPNW in June 2022. We hope States yet to join the treaty continue to engage in these processes with a view to eventually become TPNW State Parties.  Every signature and every ratification will bring us closer to realising the potential of the TPNW.

In addition, and pending the elimination of nuclear weapons, nuclear-weapons States and their allies should take immediate steps to reduce the risk of intentional or accidental use of nuclear weapons. Taking nuclear weapons off high-alert status and reducing the role of nuclear weapons in security policies and military doctrines are some ways to start this process.

Finally, we must never forget the suffering and devastation caused by the use of nuclear weapons, which provides the strongest reason for their prohibition and elimination. We must continue to raise awareness of the catastrophic humanitarian impact of nuclear weapons and the need to protect current and future generations from the effects of these horrific weapons.

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