What the Ban Treaty's Entry into Force Means for the NPT Review Process

Anant Saria

Research Manager, SCRAP Weapons

The Ban Treaty now outlaws nuclear weapons. What now for nuclear armed states and other non-signatories?

The Treaty on the Prohibition of Nuclear Weapons (TPNW or Ban Treaty) has come into force on January 22, 2021. 90 days after receiving its 50th ratification from Honduras on 24th October, 2020. This essentially means that nuclear weapons are now illegal under International Law. This is a significant step towards nuclear disarmament. 

However, the biggest impediment towards universal nuclear disarmament is that no nuclear weapon state has signed or ratified the treaty, and as such, they are not bound to the obligations stated therein. 

There has been active resistance from North Atlantic Treaty Organization (NATO) allies towards  the treaty. For example, the Netherlands, (the only NATO state present at the voting of the treaty) voted against it. Therefore, despite the entry into force of the Ban Treaty nuclear armed states do not agree on their illegality. This negatively impacts the enforceability of the nuclear ban itself, but enforceability is only a part of the larger picture.

Beyond enforceability, one would have to turn their attention to norm entrepreneurship to truly understand why the ban treaty is a significant achievement in international law. The establishment of a norm through international consensus, will have an impact on the behaviour of states beyond the (now 52) state parties to the ban treaty. 

The 52 ratifications hold great importance. The fact that most non-signatories have had to publicly justify their stance against  this treaty, is a phenomenon we should not take for granted. A central principle of international law –pacta sunt servanda, says ‘pacts or treaties must be respected and as provided for under the Vienna Convention of the Law of Treaties (VCLT). As such, the existence of an international treaty in itself, does influence the behaviour of the international community at large -even if it merely influences non-signatories to further explain their self-exclusion from the treaty. This is why the robust normative campaign that initiated (and now encapsulates) the ban treaty is critical

Whereas non-signatories are very unlikely to accept this new treaty by way of formal accession, international consensus around treaties and conventions like the Convention on Cluster Munitions (CCM) and the Mine Ban Treaty (MBT) serve to illustrate the impact that international consensus might have on deviant states. These treaties prohibiting certain weapon systems have been successful in curbing the acceptance, use and proliferation of those weapons and they have crystallised a stigma against their possession.

For example, both the CCM and MBT dried up the production and supply of these outlawed weapons systems, -even in states not party to these treaties. We even witnessed the disinvestment by companies such as Textron and Orbital ATK from cluster munitions in the United States after the CCM entered into force, despite the US not being party to the treaty. Similarly, Egypt’s policy against landmine production after the MBT despite not having acceded to the treaty, illustrates the normative value of such international treaties. 

The Ban Treaty is expected to attract similar normative effects against nuclear weapons. For example, ABP – one of the largest pension funds in the world announced divestment from nuclear production entities in 2018 due to the Ban Treaty’s adoption. It is reasonable to expect that more financial institutions will distance themselves from nuclear weapons in the coming years.

Müller and Wunderlich have discussed the impact that the Ban Treaty will have on the four central norms of the existing nuclear order: constraints on use, political restraint, non-proliferation, and disarmament. With particular reference to the hitherto glacial rate of the disarmament norm, the Ban Treaty serves to rekindle discourse and tangible efforts towards disarmament obligations, (such as those enshrined in the Non-Proliferation treaty NPT)

This opportunity must be seized by NNWS in the upcoming NPT RevCon later this year. There exists the opportunity for state parties of the Ban Treaty to convene before the NPT RevCon, or at the very latest, within the first year of the Ban Treaty’s entry into force as mandated within the treaty text. At the first meeting of state parties, the BanTreaty’s functioning alongside the NPT can be further clarified. States can also address the verification issues therein, to neutralise the oft cited objections that the NWS are bound to reiterate at the RevCon. Surely, it is time for NWS to take concrete steps towards nuclear, and ‘General and Complete Disarmament’ as stated under Article VI of the NPT.

It is worth noting that there are direct references to the NPT in the Ban Treaty, demonstrating the mutually reinforcing nature of the two treaties as envisioned by the proponents of the Ban Treaty. As the NPT also calls on NWSs to pursue nuclear disarmament under Article VI, the Ban Treaty should be viewed as an effective instrument towards the implementation of that obligation. Indeed the NNWS perceive their efforts on the Ban Treaty in that light.

The Ban treaty also requires state parties to maintain their existing safeguards with the International Atomic Energy Agency (IAEA) in compliance with the NPT.  A report from Wilton Park  also reiterates the complementarity between the two treaties which I speak of. ‘Despite the significant mistrust between TPNW supporters and opponents, the Treaty is unlikely to have an overwhelmingly negative impact on the remainder of the 2020 NPT RevCon cycle.’  

NWSs will only undermine the normative power and inviolability of international law, which many of them have painstakingly established. NNWSs must now capitalize on the legal and normative advantage that the Ban Treaty provides, and the NWSs must recognize the compatibility and potential of the TPNW along with the NPT to attain substantial, mutually beneficial progress towards General and Complete Disarmament, starting with Nuclear Disarmament. 

The only way to get rid of nuclear weapons is to start getting rid of them.