On 24 October 2020, Honduras became the 50th state to ratify the Treaty on the Prohibition of Nuclear Weapons (TPNW). According to the terms of the treaty, 90 days after the 50th ratification, the treaty enters into force and becomes law. Here, this means that for states party to the treaty, not only is using a nuclear weapon illegal, but so is possessing, developing, and transferring these weapons of unfathomable destruction as well as assisting other countries in the same.
For those of us in nuclear weapon states, including particularly hostile ones like the United States—which in the week prior to the TPNW’s receiving its 50th ratification delivered letters to treaty supporters strongly suggesting they withdraw support—our domestic governments may try to lead us to believe that the TPNW is inconsequential and useless at best and even harmful to the existing regime managing nuclear weapons at worst. International law and fundamental human rights, including the right to life, say otherwise.
USING NUCLEAR WEAPONS IS ALREADY ILLEGAL
The TPNW is a landmark addition to international law, strongly reinforcing existing law that the use or threat of use of nuclear weapons is illegal, as discussed by the International Court of Justice (ICJ) in 1996 and affirmed in 2018 by the Human Rights Committee in its General Comment 36.
The 1996 ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons held a measure of ambiguity, as it held back from asserting that using nuclear weapons in any circumstance whatsoever would be unlawful (referencing potential self-defence when “the very survival of a state” is at stake). The Court, however, did hold that the use of nuclear weapons would “generally be contrary” to international humanitarian law, which proscribes inflicting indiscriminate (that which cannot distinguish between combatants and civilians) and unnecessary (going beyond what is unavoidable for legitimate military objectives) harm. The decision was made on a seven-to-seven vote; worth noting is that three of the seven dissenting judges wrote separate opinions in which they went farther than the opinion and found the threat or use of nuclear weapons under anycircumstance whatsoever illegal. Thus, 10 out of the bench’s 14 judges found the threat of use of nuclear weapons at least “generally” unlawful back in 1996. The Court was seemingly hesitant to rule the weapons illegal outright in part because of major states’ well-established policies of deterrence, which purports that nuclear weapons are necessary to state security, because simply having them will deter would-be aggressors from attacking out of fear of nuclear reprisal.
Much more recently, in 2018, the Human Rights Committee—the treaty body that oversees implementation of the International Covenant on Civil and Political Rights (ICCPR)—issued its General Comment 36. General Comments are the Committee’s deeper interpretation of certain provisions of the ICCCPR. In this Comment, the Human Rights Committee addressed the right to life, established in article 6 of the ICCPR. In paragraph 66 of the Comment, the Committee said:
The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law. States parties must…afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction.
The Human Rights Committee’s finding of the threat or use of nuclear weapons as incompatible with the respect for the right life strongly supports what many anti-nuclear advocates have been emphasising for years: that these incomprehensibly violent weapons are inherently illegal. The reference to the right to life calling for reparations to victims of nuclear weapons effects also reflects similar principles now codified in the TPNW, as well, discussed below. This General Comment was written in the fall of 2018, nearly a year-and-a-half after the negotiation and adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW).
TPNW CATEGORICALLY BANS NUKES AND PROVIDES FOR VICTIM ASSISTANCE AND ENVIRONMENTAL REMEDIATION
The TPNW, while only legally binding on states parties, categorically bans not only the use of nuclear weapons but also development, testing, possession, and threat of their use. Even though no nuclear weapon-possessing states have signed on to the treaty, the broad support underlying the TPNW—it is, so far, signed by 84 states and ratified by 50—strongly suggests a resilience to the developing norm that rejects nuclear weapons and their catastrophic destruction as part of a moral or lawful global governance.
Particularly notable is that this treaty is the first in the legal regime related to nuclear weapons to impose human rights-affirming positive obligations on member states, including victim assistance and environmental remediation. These positive obligations on states parties represent a human rights-based approach to the global elimination of nuclear weapons.
Article 6 of the treaty lays out the requirements for all states parties to provide “age- and gender-sensitive” assistance to those within its jurisdiction affected by the use or testing of nuclear weapons. An all-encompassing obligation, this assistance includes medical care, mental health support, and “social and economic inclusion.” Proponents of feminist foreign policy laud the gender sensitivity in the treaty, noting the disproportionate impact of nuclear weapons development, testing, and use on women and girls as well as Indigenous populations. Article 6 further calls on states parties to take the necessary measure to remediate environments that have been contaminated by nuclear weapons testing or use.
NUCLEAR WEAPON STATES FACE GROWING RESISTANCE TO NUKE NORMALISATION
Despite nuclear weapon states' active resistance to the treaty and the growing consensus on nuclear weapon illegality, the TPNW’s imminent entry into force represents an exciting moment for human rights-focused governance and multilateralism generally. In a time when multilateral cooperation is in serious trouble and while nuclear-armed countries spend trillions of dollars on modernisation programs for these weapons, the TPNW brings back to the fore these facts: nuclear weapons are weapons of mass destruction on the largest scale imaginable; even their possession and development is extraordinarily harmful (and disproportionately so along lines of race and gender); and so long as they exist, the human race risks its own destruction and that of our planet whether through intentional act or accident.
Ariana is a founding member and managing editor of Human Rights Pulse. She is a New York-based attorney working in international humanitarian and human rights law and is the executive director of Lawyers Committee on Nuclear Policy.