Nuclear Weapon Prohibition Treaty (NWPT): Contours and proposals, Issues

The Nuclear Weapon Prohibition Treaty was initiated by the United Nations in its session from June 15 to July 7, 2017. It is to act complementary to the nuclear Nonproliferation Treaty (NPT) and is aimed at following the path laid down by Article VI (state parties must pursue negotiations in good faith on effective measures relating to nuclear disarmament). The countries who act as lead sponsors are Austria, Ireland, Mexico, Nigeria, Brazil and South Africa.

Proposals

This Treaty puts an obligation on the Parties (States) to refrain from developing, testing, producing, manufacturing, possessing, acquiring or stockpiling nuclear weapons or other nuclear explosive devices. The signatories are prohibited from transferring or receiving nuclear weapons, they are required to control their production of nuclear explosive devices and restrict assistance with respect to such weapons. There is also a prohibition on the use or threatening to use of nuclear weapons or other nuclear explosive devices. It also prevents the State parties from stationing, installation or deploying of nuclear explosive devices in their territory. In addition to these prohibitions, an obligation has been imposed on the Parties to provide assistance to victims in case of such a nuclear attack or help with environmental remediation efforts.

Issues with Respect to the NWPT

Although this treaty appears to be a pressing issue and calls for ratification by all (even those States not party to the NPT), there are several hurdles in agreeing with the final draft of the Treaty. Some of these are:

Definition of terms

This treaty aims to move ahead from the Non Proliferation Treaty by stating that even there is a prohibition on ‘development’ of nuclear weapons along with their ‘manufacture’.  But the different terms which have been proposed like ‘research’, ‘design’ wherein there were difficulties in agreeing as to what constitutes these. While research could mean even knowledge of a potential nuclear weapon, on the other hand it could also include an activity of development of the weapons, to which Parties have shown wide reluctance.  The term design also faced similar dilemma as to whether to only refer to warheads or even other forms of weapons.

Question of nuclear explosive testing

There has been differences of opinion as to whether the prohibition on nuclear explosive testing should be included. While Austria and Mexico were reluctant to move forward with this proposal claiming that it may clash with the provisions of the Comprehensive Test Ban Treaty, Brazil, New Zealand and South Africa have favoured its inclusion. This also calls into question as to what amounts to ‘testing’ which many Parties asserted were to refer to wide range of activities like computer simulation, hydrodynamic and laser fusion experiments etc. It not only speaks of development but tests are also conducted for confirming reliability of the weapons. Although this problem could be solved through inclusion of certain definitions, many Parties did not favour it on the grounds that negotiations would be delayed and a possible clash with NPT and CTBT.

Monitoring and Verifying compliance

While a huge debate on development of weapons had been under way, the questions of monitoring and verifying compliance did not receive much attention. There are often nuclear programs which will not be visible to the non-nuclear weapon states with the current levels of compliance. The treaty merely talks of complying with the IAEA safeguards which again pushes it back to the old regime without anything new to be added.

Problem with nuclear weapon delivery vehicles

While the Parties were agreeing upon prohibition of transfer and possession of nuclear weapons, they gave little attention to the question of nuclear weapon delivery vehicles. The matter is slightly complicated because imposing these on the non-nuclear weapon states was considered as a futile exercise. But the US-Soviet Union Cold War period indicates that controlling or eliminating delivery systems for nuclear weapons is a necessity in developing a global enterprise of eliminating existing nuclear arsenals.

Prohibition of transit of Nuclear Weapons

This prohibition requires a very proactive approach on the part of the Parties and more efforts than those put in the nuclear weapon free zone treaties. The main efforts require that nuclear weapons and its components do not cross the territory of air and water over which the Nuclear Weapon State has jurisdiction. Austria which is a country of minimalist approach asserts that such a prohibition requires difficult issues to be solved first like demarcating the maritime and air space in case of some countries. Malaysia also rejected it on technical grounds. But non-acceptance of this will result in violation of UN Security Council Resolution 1540 that urges States to adopt measures like control on transit and financing, preventing non-state actors from trafficking in nuclear, biological and chemical weapons and their means of delivery.

Use and threat of Use

It closely follows the model of Chemical Weapons Convention when it prohibits use of nuclear weapons. But the dispute arose as to whether threat of use should also be included in the letters of the treaty. But parties had been reluctant to include it on the contention that it is already prohibited under the UN Charter. Thus, here we see a strong inclination towards the existing treaties while drafting of a revolutionary treaty like this. The need for the inclusion of prohibition of threat was also highlighted by the International Court of Justice when it stated that the threat to commit an act which violates international humanitarian law is itself illegal. It has been asserted by South Africa that clear ban on use of threat is sine qua non for delegitimizing the concept of nuclear deterrence.

A content of Preamble

The Preamble was another area of discussion that involved conflicting opinions. Some governments and civil societies have asked for reference to the humanitarian consequences of nuclear explosions and basing it on principles of international humanitarian law. There is mainly a call for reference to the hibakusha of Japan(victims of US Nuclear attack on Hiroshima) and some other victims to substantiate the claim. Some have given contradicting opinions like inconsistency of nuclear weapons with international humanitarian law. Thus, this also remains a matter of dispute.

Conclusion

Thus, two main premises guide the creation of this treaty. Firstly, there is an apprehension that nuclear armed States are less likely to join this and even if they wish to comply with it they would not do it transparently through ratification. So, expensive provisions have been kept away and flexibility is still there until and unless a majority of States becomes party to it. But two mechanisms have been out forward for a nuclear State to join in. One is that they should verifiably dismantle all arsenals before they joined the treaty and they shall be subject to a time bound obligation to take action. It also mandates a declaration by the States as to whether they possess nuclear weapons, where they are located in the jurisdiction etc. Most importantly, the States have not been given the option to withdraw once they ratified it with the aim of elevating the treaty to the level of customary international law. The success of this treaty would be best understood after its full ratification, especially by nuclear weapon States.