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Legal Aspects of the TPNW and How they Impact on its Effect

The story of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is a very fast moving one - we must be most concerned with what we are now enabled to do and what should happen next.

A simplistic view of ‘now illegal’ can be at best confusing if not misleading. The central problem with nuclear weapons is not their legality or lack of it, but their effect - the catastrophic humanitarian consequences of their use and the existential danger to this planet that arises from their existence.

The history of the TPNW’s development, its relationship to the Nuclear Non-Proliferation Treaty (NPT) and, to a lesser degree, the ICJ Advisory opinion on Nuclear Weapons (1996) and the impact of the TPNW on international acceptance of the legitimacy of nuclear weapons (stigmatisation) is all part of the story concerning changes in the legal status of nuclear weapon and these changes depend on understanding the reality of the effect of the weapons.

The prohibition of other weapons of mass destruction has effectively removed any status that they might have had as symbols of power and, until the long-overdue TPNW was adopted, only nuclear weapons were not subject to the universal revulsion, of course too late for any effective legal or practical remedy. Nuclear deterrence theory suggests that their very awfulness would prevent their use - an unconvincing tautology seeming to say ‘nuclear weapons need to exist in order to prevent their use’. (Similar distortions existed in the minds of those who questioned abolitionists about the legality of the slave trade, recently re-examined in the history of that trade and its devastating legacy of suffering).

An unequivocal and comprehensive prohibition adopted and agreed by member states of the UN starts the process of delegitimising the very idea that there is any place for these weapons in any transnational negotiation

The existing definitions of what is acceptable violence between state parties – proportionality, distinguishing civilians - would all make any use of any of the nuclear weapons that presently exist illegal, which can be tested if they are used, of course too late for any effective legal or practical remedy. Nuclear deterrence theory suggests that their very awfulness would prevent their use - an unconvincing tautology seeming to say ‘nuclear weapons need to exist in order to prevent their use’. (Similar distortions existed in the minds of those who questioned abolitionists about the legality of the slave trade, recently re-examined in the history of that trade and its devastating legacy of suffering).

There is no over-arching legal framework or force that can drag the nuclear-armed states to the table, telling them their weapons are ‘now illegal’ and that is why they must abandon them. The power that will make that change lies in the hands of those who refuse their government's mandate to spend money, put people to work or threaten life on earth, in the way that a policy based on nuclear weapons demands. The TPNW allows UN member states to come together and desist and reject these policies and refuse to be compliant with their effects. It allows member states to work together to remediate environmental damage to test sites and support indigenous peoples whose lives and lands have been affected; it publicly recognises that these countries have a shared view that nuclear weapons are an anathema and the number of governments who share that view is growing. Within nuclear armed-states, responsible NGOs and many Parliamentarians agree with the provisions of the Treaty and that number is also growing.

UN House Scotland is an ICAN Partner Organisation and also hosts the Co-ordinating group for ICAN in the UK (UNA UK, UNH Scotland, and the Acronym Institute for Disarmament Diplomacy). ICAN is the originator and main civil society contributor to the origins, development and Entry Into Force of the TPNW - that is what it was awarded the Nobel Prize for doing, despite persistent opposition and pressure from nuclear armed and nuclear complicit states. The legitimacy of the nuclear-armed states position has diminished at each hurdle overcome.

On the UK’s weapons in Scotland, as early as 2012 a Select Committee paper was published on the possibility of re-location of the UK nuclear weapons outside Scotland, where they are seen by the Parliament and the present Scottish Government as an affront and an anathema. There has been much work done since, but a (failed) independence referendum did not flush out a UK Government solution to the problem.

The impossibility of relocating the UKs nuclear weapons system from Scotland is more than adequately covered in a number of publications by the late John Ainslie (Nowhere to Go) and David Cullen at NIS (Trouble Ahead), both referenced in the UK Chapter of Reaching Critical Will’s 2020 update on modernisation programmes around the world, Assuring Destruction Forever. The Scottish political question is a separate, albeit related, issue, when a parliamentary election seems likely to return a Government and a First Minister that have publicly declared an intention of joining the TPNW.

While we need to ensure that we understand the limitations of the legal implications we can afford the TPNW its importance in driving forward changes in what is considered acceptable in the global community. That is only in part dependent on the legal framework and it can re-interpret or alter it. There is a fluid balance that can arise through the UN process, that has notably been used to effect by individuals like Alexander Kmentt and Tariq Rauf (see IAEA, SIPRI, NPT, METO) and by the efforts of UN consultative organisations like the ICRC, Bulletin Atomic Scientists, Reaching Critical Will.

The UN process and negotiation of the TPNW’s rules of procedure can draw from customary international law and also on well-regarded research to make lasting changes or facilitate agreements and eventually shape interpretations and accepted understanding of IHL through negotiations based in the preamble to the Treaty.

UN House Scotland offers a briefing on the TPNW and the UK (nuclear-armed) Government in the form of the official 4 page report from Dr Rebecca Johnson, founding chair of ICAN and NGO participant at every NPT Review Conference since the 1980’s. (This document was prepared as a brief introduction to the findings in a full-length report by Dr Johnson for Nuclear Information Service and the Nuclear Education Trust and funded by the JRCT due for publication shortly). A PDF can be downloaded from the UNHouse Scotland or other ICAN Partner’s websites.

Two recent articles published by TODA are essential reading on where we are with the TPNW. One is by Ambassador Alexander Kmentt, the Austrian diplomat and former Arms Control person of the year who initiated the Humanitarian Pledge that was the catalyst for UN to set up the Open Ended Working Group that started the TPNW process at the UN, and who has been appointed by the UN as President to oversee the First meeting Of State Parties to the TPNW later this year

The other is by Professor Tilman Ruff, the first founding chair of ICAN and co-president of International Physicians for Prevention of Nuclear War who is an advisor to The Red Cross and the World Health Organisation.

Despite the credentials, both articles are very accessible and inspiring to read and to be informed by, and indicate that academic integrity does not discount ethical consideration.

In particular, Tilman exhorts us requires us to ‘use the treaty well’ and offers a positive and bold approach that does not offer support to the inevitable disparaging efforts to belittle the importance or workability of the TPNW that have marked every stage of its progress. His outline of the next series of steps will require academic rigour and activist vigour. ICAN is already working with diplomatic, academic and campaigning partners to achieve this and information about all the Scottish or other UK ICAN Partners and the international campaign is reported at the Scottish ICAN Roundtable (First Tuesday afternoon, every fourth month, next one is April 6th)

In addition to acting as an administrative base for ICAN partners in the UK, UN House Scotland’s work in increasing the understanding and promotion of the UN’s Sustainable Development Goals allows a holistic understanding of the TPNW, since none of the goals are ultimately compatible with the continued existence of nuclear weapons. UN House Scotland also provides a base for, and works in partnership with Secure Scotland, to challenge language and practices that embed racist and patriarchal prejudices in everyday life and to encourage the development and promotion of a progressive Scotland that looks after all its citizens and incomers and contributes to the global security and peace. Both Secure Scotland and UN House Scotland welcome and appreciate the importance of the ever growing and changing application of International Humanitarian Law in the nuclear Weapons debate, and see the TPNW’s place in a much wider and inter connected context than the purely legal framework.

Citations and references available on request.

Janet Fenton

Feb 2021

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