The Treaty on the Prohibition of Nuclear Weapons: Strengths, Weaknesses and Current Status

ABSTRACT

This commentary offers an analysis of the Treaty on the Prohibition of Nuclear Weapons (TPNW), its strengths, weaknesses, relationship to other agreements as well as recent updates. Indicating the urgency in enacting nuclear disarmament, nuclear threats loom over two of the major conflicts we are facing today: the danger of nuclear proliferation in Iran as it enters ever more direct confrontation with a nuclear-armed Israel; and the collective careful dance along the fine line of support for Ukraine while not provoking a nuclear-armed Russia. We argue that framing the issue of the threat or use of nuclear weapons in humanitarian and environmental terms proved to be a motivating and compelling normative catalyst that drew both civil society and member states into the treaty-making process. We also argue that the nuclear taboo is eroding, and deterrence theory is highly flawed. This piece reflects on the outcomes of the First Meeting of States Parties in Vienna in 2022 and updates from the Second Meeting of States Parties in late 2023 in New York, which the authors attended, plus gives an update on the endeavors of the intersessional working groups.

KEYWORDS:

• Nuclear weapons
• humanitarian law
• non-proliferation
• nuclear abolition
• nuclear taboo
• nuclear accidents
• Hiroshima and Nagasaki

Introduction: Treaty on the Prohibition of Nuclear Weapons

Frustrated by the abrogation of promises by nuclear weapons states to disarm, nations who have foregone nuclear weapons joined forces with key members of civil society around 2013 to give birth to a humanitarian movement, calling for the prohibition of nuclear weapons which culminated in the Treaty on the Prohibition of Nuclear Weapons. Framing the issue in humanitarian terms and environmental destruction, the treaty makers emphasized the devastating impact of nuclear weapons and their testing on all forms of life. The normative humanitarian focus proved to be a motivating and compelling impetus that drew policy makers into the process. The humanitarian initiative succeeded in changing the discourse around nuclear weapons, pointing out the flaws in deterrence theory and raising awareness of the unacceptable suffering caused by any use of nuclear weapons. States joined hands with NGOs to build support for an agreement to ban nuclear weapons. The commentary here examines the strengths and weaknesses of the Treaty, its relationship to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and reveals the strategies and creative working methods that enabled the Treaty to go forward. At this writing, there are 70 States Parties to the TPNW and 93 signatories. Efforts by NGOs like the International Campaign to Abolish Nuclear Weapons (ICAN), who won the Nobel Peace Prize in 2017, include energizing civil society and cities as well as promoting financial divestment from the nuclear weapons military industry. The Treaty’s member states have met twice; the first meeting took place in Vienna, Austria, 21–23 June 2022, and the second meeting of states parties in New York 27 November-1 December 2023. This commentary covers the outcomes of the first meeting as well as updates from the Second Meeting of States Parties and efforts of the intersessional working groups. The methodology includes interviews, articles, books and notes from attended conferences. The TPNW comes at a critical moment in time when the global community faces serious challenges. Major power tensions are on the rise and bellicose rhetoric permeates the news media. In addition to these tensions, adherence to, and respect for, international security regimes based on the rule of law, transparency and accountability are deteriorating. Where there was once a taboo on the use of nuclear weapons, threats by Russia appear to have erased that normative sense of security.

Treaty Negotiations and First Meeting of States Parties to the TPNW

After a series of conferences on the humanitarian consequences of the testing and use of nuclear weapons, consensus grew among like-minded states in favor of the creation of a nuclear ban treaty. In December 2016, they obtained a mandate from the UN General Assembly to hold a negotiating conference at the UN Headquarters in New York to agree on language for the treaty in two sessions. The members took advantage of the non-veto, majority voting rules of the General Assembly, avoiding the p-5 nuclear-power veto in the Security Council, to hold their discussions. The absence of the nuclear-armed states and most NATO members, although lamentable, ensured a constructive drafting process that produced a concise Treaty with clear-cut provisions. The TPNW was created by 135 participating states in less than four weeks of negotiations. It took slightly over three years for the Treaty to gather the required number of ratifications for its entry into force which became a reality on 22 January 2021 (Krasno and Szeli 2021, 95).

In a note verbale dated 4 April 2022, UN Secretary-General António Guterres convened the first Meeting of States Parties to the Treaty from 21 to 23 June 2022 at the Austria Center Vienna, having postponed the meeting by about one year due to Covid-19. Immediately prior to the first meeting of Treaty members, a fourth conference on the humanitarian effects of nuclear weapons was also held in Vienna at the same venue, directly drawing attention to the purpose of the new Treaty. The Meeting was opened by UN High Representative for Disarmament Affairs Izumi Nakamitsu and Alexander Kmentt (Austria) was elected president of the meeting with the meeting’s vice presidents: Kazakhstan, Mexico and Thailand.

The following 49 States Parties participated in the Meeting: Austria, Bangladesh, Benin, Bolivia, Botswana, Cambodia, Chile, Comoros, Cook Islands, Costa Rica, Côte d’Ivoire, Cuba, Ecuador, El Salvador, Fiji, Guinea-Bissau, Guyana, Holy See, Honduras, Ireland, Jamaica, Kazakhstan, Kiribati, Lao People’s Democratic Republic, Lesotho, Malaysia, Malta, Mexico, Mongolia, Namibia, New Zealand, Nicaragua, Nigeria, Palau, Panama, Paraguay, Peru, Philippines, Saint Kitts and Nevis, Saint Lucia, Samoa, San Marino, South Africa, State of Palestine, Thailand, Trinidad and Tobago, Uruguay, Venezuela and Viet Nam.

The following 34 States attended the Meeting as observers: Algeria, Australia, Belgium, Bosnia and Herzegovina, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Democratic Republic of the Congo, Dominican Republic, Finland, Germany, Ghana, Guatemala, Indonesia, Iraq, Libya, Liechtenstein, Marshall Islands, Mauritania, Morocco, Mozambique, Nepal, Netherlands, Niger, Norway, Qatar, Senegal, Singapore, Sweden, Switzerland, Timor-Leste, United Republic of Tanzania and Yemen (Reaching Critical Will 2022, 4).

All the States Parties had an opportunity to speak during the three-day gathering along with several members of civil society and ICAN as well as observer states, some of whom had signed the Treaty but not yet ratified, such as Brazil. Sweden, a non-signatory observer to the meeting, took the floor and strongly criticized the provisions in the Treaty. Sweden’s comments appeared to be related to its application to join NATO after the Russian invasion of Ukraine in February 2022. And as of March 2024, Sweden became the 32^nd member of NATO, following closely behind Finland who joined in 2023. Nevertheless, the hope is that more states will join the Treaty in coming years and “some NATO countries, including Germany, which hosts U.S. nuclear weapons on its territory, have attended the meetings of the TPNW states parties as observers” (Parke 2024, 14).

At the meeting, the participants adopted a decision on deadlines for the removal and destruction of nuclear weapons. On the final day, the meeting adopted an Action Plan with 50 concrete and progressive actions to implement the treaty and work towards a world free of nuclear weapons (ICAN, n.d.).¹ The Action Plan included provisions on the intersessional structure for the implementation of the Treaty, establishing working groups on 1) nuclear disarmament verification; 2) victims assistance and environmental remediation along with international cooperation and assistance; 3) universalization of the Treaty; 4) a scientific advisory group; 5) facilitation on gender and 6) complementarity of the TPNW with the existing disarmament architecture (ICAN, n.d.). The working group on verification, chaired by Mexico and New Zealand, began discussions on the designation of a competent international authority for nuclear disarmament verification as well as timelines for former nuclear-armed states to join. The working group on victim assistance and environmental remediation was particularly active, including preparation for an assistance trust fund. In addition, the Action Plan created a Scientific Advisory Group of 15 experts nominated by states parties and funded by voluntary contributions (ICAN, n.d.).² Civil society and academics were particularly active throughout the intersessional process, providing valuable expertise. Thus, the TPNW tradition of close collaboration among states and civil society continued, in stark contrast to other regimes such as the NPT. An update on the Second Meeting of States Parties is covered below.

Unique Provisions in the TPNW

The main architects of the Treaty, including a core group of states mainly from the Global South (with notable exceptions of Ireland, New Zealand and Austria) as well as ICAN and the International Committee of the Red Cross (ICRC), opted for a simple, clean-cut prohibition treaty. They sought to establish a norm rather than create a highly technical text such as the Chemical Weapons Convention, which would have delayed the process and required input from the possessor states. The obligations under the TPNW are stated in clear and compelling language. For example, Article 1 on Prohibitions reads:

Each State Party undertakes never under any circumstances to: (a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices; (b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly; (c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly; (d) Use or threaten to use nuclear weapons or other nuclear explosive devices.

In other words, there is no vague language that might later be interpreted to create loopholes. Article 6 is unique to any nuclear weapons treaty by its inclusion of victims’ assistance and environmental remediation. This is a reflection of the humanitarian underpinning of the treaty and the inclusive process by which it was created, inviting input from NGOs and other civil society actors. Article 6, paragraph 1 states:

Each State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.

Article 6, paragraph 2 adds to these responsibilities by including environmental remediation:

Each State Party, with respect to areas under its jurisdiction of control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall take necessary and appropriate measures towards the environmental remediation of areas so contaminated.

These provisions under the TPNW to address the humanitarian and environmental consequences of the use and testing of nuclear weapons are consistent with and a result of the series of humanitarian conferences that led to the creation of the Treaty. All parties to the Treaty are requested to help with these endeavors.

As mentioned above, the Treaty provides two options for nuclear weapons states to join: The state in question can give up its weapons under supervision before joining the Treaty, or it can join and undergo denuclearization within ten years through monitoring mechanisms carried out under the Treaty. One weakness of the TPNW as it stands currently is that has not yet established such a monitoring and verification mechanism. The parties to the Treaty decided to put that off to be added later. Article 4, paragraph 6 explains:

The State Parties shall designate a competent international authority or authorities to negotiate and verify the irreversible elimination of nuclear weapons programmes, including the elimination or irreversible conversion of all nuclear-weapons-related facilities in accordance with paragraphs 1, 2 and 3 of this Article.

Intersessional working group one on disarmament and verification has been tasked with exploring options for the establishment of preparations for such an authority. The findings of this working group are discussed below.

Second Meeting of States Parties: 27 November − 1 December 2023

Ambassador Juan Ramón de la Fuente of Mexico served as President of the Second Meeting. At the time, there were 93 signatories to the Treaty and 69 ratifications, now 70 as of April 2024. Fifty-nine States Parties participated in the meeting in New York along with 35 observers which included a few non-signatories but also countries like Brazil who had been among the first to sign back on 20 September 2017, but has not yet found an opportunity to bring the Treaty to the attention of the senate for ratification. Significantly, the IAEA attended the meeting as an observer, even though they have not yet been consulted on the establishment of a “competent international authority” for the verification of disarmament. Over 700 individuals participated in the meeting and aside from the formal consultations, ICAN held 65 side events that invited members of academia, civil society, the scientific community, victims of nuclear use and testing, and others (ICAN 2023).

The intersessional working groups presented their reports and held consultations to update their findings. Highlighted here are a few of these reports. The Scientific Advisory Group, co-chaired by Patricia Lewis and Zia Mian, conducted ten meetings of their fifteen-member group of scientific advisors who participated in their personal capacities. Their tasks during this period were twofold: 1) to assess the status and developments of nuclear weapons, their risks, nuclear disarmament and the humanitarian consequences of their use and testing; and 2) to lay the foundation for creating a network of scientific and technical experts.³ Their work complements and informs the other working groups, namely the victims assistance group and the effort to establish a competent international authority to verify nuclear disarmament and prohibitions in the Treaty, who would need their expert advice.

The Scientific Advisory Group also works with other related bodies such as the UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) established by the UN General Assembly in 1955 which consists of 31 member states, headquartered in Vienna, but independent of the IAEA. UNSCEAR provides data and reports on assessing levels and effects of exposure to ionizing radiation in order to evaluate radiation risk and formulate protective measures. It, in turn, works with other international and UN bodies such as the International Commission on Radiological Protection (UNSCEAR, n.d.). This collected body of information available to the Scientific Advisory Group also informs the TPNW working group on identifying victims and environmental damage caused by the use and testing of nuclear weapons. One caveat, however, is determining the reliability of the data. Besides information gathering, the conceptual aspect of the work of the Scientific Advisory Group is to determine what datapoints are needed. The TPNW originated from the same humanitarian disarmament movement in the 1997 Anti-Personnel Landmine Convention. But while the presence of landmines is easily established, determining scientifically who is a victim or how the environment has been damaged by nuclear exposure and not something else, is a much more complex formulation. At the same time, it is essential to remember that nuclear testing has disproportionately affected Indigenous peoples and this Treaty “seeks to right the wrongs of the past (Parke 2024, 15).

Mexico and New Zealand, the co-chairs of the informal working group on the creation of a competent international authority to verify nuclear disarmament under the TPNW’s provisions held five meetings, bringing together States Parties, members of the Scientific Advisory Group, the ICRC, academia and civil society.¹ The goal of this group was to identify the basic requirements for establishing such an authority. The co-chairs recommended an incremental approach with a sustained effort over several years. However, the authority would have to become robust once a nuclear state decides to join. Some of the participants at the meeting of States Parties were clearly disappointed that the group’s results, which were highly anticipated, were not more substantive. Rebecca Johnson of ICAN stated that verification is essential to ensure that the elimination of nuclear weapons is irreversible and suggested that consultations with the IAEA and CTBT Organization be undertaken in the coming year. While the CTBT is not yet in force, a study of its observation methodology would be useful. However, the competency of the CTBT Organization is a focus on testing, not possession of nuclear weapons. Alexander Kmentt of Austria also added that the working group should clarify what role the IAEA might provide, noting the agency’s role in the denuclearization of South Africa’s arsenal. It was also suggested that the working group hold consultations with OPANAL, the organization that oversees the Treaty of Tlatelolco that formed the Latin American and Caribbean nuclear weapons-free zone, whose members all have safeguards agreements with IAEA. The working group agreed with these suggestions but also stated that they needed a coherent approach because a new competent international authority would be under intense scrutiny once it is established (Krasno 2023). Nevertheless, the establishment of a competent authority, while it must be carefully structured, cannot be delayed extensively because it must be up and ready as soon as a nuclear state should decide to join the TPNW. The working group should not be left scrambling at the last minute.

One might ask, why not utilize the IAEA to carry out this task? Firstly, the IAEA is linked to the NPT and largely controlled by the five original nuclear-armed states, who have effectively prevented the agency from becoming involved with the TPNW. Secondly, the IAEA has a dual function: safety and non-diversion of nuclear material for weapons use, but also the promotion of nuclear energy. Nevertheless, all States Parties to the TPNW are asked to join IAEA safeguards provisions, if they have not already done so. Bringing together the monitoring and investigative methodology of both the IAEA and the CTBT Organization would be extremely informative.

Perhaps the most successful intersessional working group, co-chaired by Kazakhstan and Kiribati, is the one on victim assistance, environmental remediation, international cooperation and assistance.² The co-chairs invited States Parties along with stakeholders such as representatives of academia, the ICRC, ICAN and affected communities from Hiroshima, Nagasaki and testing sites to enter the dialogue. The group called on States Parties to assess victims’ needs as well as the historic environmental contamination and the national capacity to address these needs. The group developed a practical format for reporting national needs assessments to facilitate transparency and improve international assistance and remediation cooperation. One of the great successes of the Second Meeting of States Parties is the possible establishment of a Trust Fund for victims’ assistance and environmental remediation. Participants agreed to discuss creating such a Trust Fund during the current intersessional period with the goal of establishing such a fund during the third Meeting of States Parties to the Treaty in March 2025. There was some disagreement on whether non-States Parties would be allowed to contribute to the fund out of concern that this might allow them to pay their way out of responsibility instead of properly joining the Treaty. However, that point is questionable. Others argue that similar trust funds have been created by other treaties, such as the Landmines Convention and the Convention on Cluster Munitions. While many of the States Parties to these conventions are donors to the trust funds, including the UK, Germany, Norway and others, non-signatories are also donors such as the US, Finland, Saudi Arabia, for example (Landmine and Cluster Munition Monitor, 2013). The victims need assistance whether in healthcare or environmental remediation, and all sources of funding should be welcome.

Overall, the Second Meeting of States Parties yielded modest results on paper, given the complexity of some tasks such as the establishment of a competent international authority. However, it did once again serve as a vital and dynamic forum for exchange with civil society and a catalyst for nuclear disarmament more broadly, at a time when other such fora seem to have all but given up on this mission. The Third meeting of States Parties to the TPNW will take place March 3–7, 2025, again in New York at UN headquarters with Kazakhstan designated as the meeting’s president. During the current intersessional period, Kazakhstan has asked all chairs of the working groups to submit interim reports to keep the presidency up to date. Interestingly, Kazakhstan will also preside over the NPT review PrepCom held in Geneva in July and August 2024 which may offer an opportunity to enhance the complementarity of the two Treaties.

Concluding Thought: The TPNW, the NPT and the Current Security Situation

The relationship between the TPNW and the NPT, which has been the cornerstone of nuclear non-proliferation since its inception in 1968, has been the focal point of an intense dispute. The nuclear powers claim that the TPNW is in direct conflict with the NPT, erodes the cornerstone status of the NPT and makes the world less safe by debunking nuclear deterrence. However, proponents of the TPNW maintain that the Treaty is compatible with the NPT and in fact, reinforces Article VI of the NPT which calls for eventual nuclear disarmament. In the opening paragraphs of the TPNW it commits to:

[…] the full and effective implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security.

Nevertheless, the nuclear powers are not interested in giving up their privileged position any time soon and seem to feel threatened by the international push to abolish these weapons. The current security situation following the full-scale invasion of Ukraine by Russia appears to reinforce the arguments of both sides at the same time: proponents of nuclear disarmament point to the very real threat of a Russians nuclear attack as a case in point of why those weapons should not exist; nuclear-armed states and their allies, notably on NATO’s Eastern flank, have gathered more closely under the nuclear umbrella and continue to believe that nuclear deterrence will keep members of the alliance safe. At the same time, the recent conflict in the Middle East demonstrates that Israel’s nuclear stockpile is useless in its fight against Hamas and that their nuclear presence did not deter the 7 October 2023, Hamas attack nor the Iranian 13 April 2024, massive missile and drone barrage against Israel. On the contrary, Israel’s nuclear arsenal only serves to raise the stakes and invites proliferation.

So far, the heightened nuclear threat has not inspired a large-scale anti-nuclear movement like we saw at the height of the Cold War. Nevertheless, dedicated civil society organizations have been tireless in their advocacy for states to join the TPNW. The role of civil society led by the ICRC and ICAN, who won the Nobel Peace Prize in 2017 for its leadership in bringing about the TPNW, has been enormous and the linchpin for the Treaty’s creation. ICAN continues its campaign to garner more member states and build grassroots pressure on all fronts. Its Cities Appeal has been very effective. Globally, Sidney, Oslo, Berlin, Paris, Geneva, Washington, DC, Hiroshima and Nagasaki have all joined. In the US, 70 cities have signed up, including Los Angeles and New York.⁶ In order to follow the money and target the nuclear weapons industrial complex, ICAN has partnered with PAX, the largest peace organization in the Netherlands, to produce a regular report called, “Don’t Bank on the Bomb”, which publishes a list of nuclear-weapons producers and their financiers.⁷ The purpose is to encourage individuals, banks and funds to divest from the business of producing, maintaining and modernizing nuclear weapons.

With 70 ratifications and 93 signatories, the TPNW is growing in numbers and placing more pressure on the nuclear powers to disarm. The humanitarian appeal is more compelling than ever, and now with the war in Ukraine and Russia’s reminder to the world that it possesses nuclear weapons, there is increased concern that the nuclear taboo is eroding. Some nuclear powers contemplating the use of tactical nuclear weapons in the field is highly troubling. Modernization of these weapons and the implementation of Artificial Intelligence (AI) into nuclear arms systems could threaten mishaps, miscalculations, and speed up warhead delivery with no time to react or step away from escalation. Nuclear weapons are an existential threat and the TPNW offers a framework to eliminate this threat and draws a roadmap that can lead to a nuclear-free world.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Jean Krasno

Jean Krasno is a member of the faculty of the Department of Political Science at the City College of New York and is a lecturer at Columbia University. She teaches courses on nuclear security and non-proliferation, published the papers of Secretaries-General Kofi Annan and Ban Ki-moon and has several publications on the United Nations.

Elisabeth Szeli

Elisabeth Szeli is an Austrian career diplomat currently serving as national expert for the Eastern neighborhood at the European Commission. She was previously a UN staff member at the Department of General Assembly and Conference Management in New York and has an MA in International Relations from the City College of New York, where she began writing on nuclear security issues.

Notes

¹ TPNW.MSP.2023.7, Report of the Co-Chairs of the informal working group on the implementation of article 4 (Mexico and New Zealand).

² TPNW/MSP/2023/3, Report of the Co-Chairs of the informal working group on victim assistance, environmental remediation, international cooperation and assistance (Kazakhstan and Kiribati).