The Nuclear Ban Treaty: A Legal Analysis

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The recently adopted Treaty on the Prohibition of Nuclear Weapons (or the ‘ban treaty’) is not a viable legal vehicle for eliminating nuclear weapons; it does not establish international legal norms; and it might, depending on how it is implemented, do harm to existing non-proliferation efforts. Its governmental and non-governmental proponents appear to be motivated by a sincere concern for the humanitarian risks posed by nuclear weapons and a desire for speedier progress in eliminating them. But this particular text, as a legal matter, does not make a positive contribution to achieving nuclear-disarmament objectives.

The United States has historically supported the objective of eliminating nuclear weapons. And the five nations recognised as nuclear-weapons states under the Nuclear Non-Proliferation Treaty (NPT) – China, France, Russia, the United Kingdom and the United States – are under a legal obligation to pursue negotiations on disarmament. Since the height of the Cold War, the nuclear stockpiles of the United States and Russia have been dramatically reduced (albeit incrementally), reflecting changes in the international security environment.

The NPT obligation to seek nuclear disarmament, however, has been in place since 1970, so impatience on the part of many non-nuclear-weapons states that joined the NPT is understandable. The ban treaty is a clear manifestation of that impatience. The treaty was the product of a UN conference pursuant to UN General Assembly Resolution 71/258 of 23 December 2016. The five nuclear-weapons states under the NPT did not participate in the negotiations, nor did the other states believed to possess nuclear weapons – India, Israel, Pakistan and North Korea. (In this article, the term ‘nuclear-weapons states’ is used to refer to the five under the NPT, and the term ‘states possessing nuclear weapons’ will refer to all nine states known to possess or suspected of possessing nuclear weapons.) In addition, non-nuclear-weapons states closely allied with the nuclear-weapons states also opposed the treaty – whether through non-participation, a negative vote on the final text (the Netherlands) or abstention on the final text (Singapore). Nevertheless, the treaty was done in New York on 7 July 2017, was opened for signature on 20 September 2017, and will enter into force 90 days after the 50th instrument of ratification, acceptance, approval or accession has been deposited with the secretary-general of the United Nations.


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