JIIA Strategic Comments (2022-09)

Papers in the "JIIA Strategic Commentary Series" are prepared mainly by JIIA research fellows to provide commentary and policy-oriented analyses on significant international affairs issues in a readily comprehensible and timely manner.

Introduction

At the 1995 Review and Extension Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), it was decided that the Preparatory Committee for each Review Conference shall discuss substantive matters, as well as procedural matters such as the agenda of the Review Conference, the allocation of items to the respective Main Committees and the Rules of Procedure. Since then, four years of each five-year NPT review cycle (three years in the Preparatory Committees and a year in the Review Conference) have been spent discussing nuclear nonproliferation and disarmament issues. While this in itself should be welcomed as a reinforcement of the NPT review process, it has also created a situation in which NPT-related meetings have been held as if they were annual events. As a result, not a few experts have the impression that discussions on nuclear nonproliferation and disarmament in NPT review cycles have been stuck in a rut.

However, this year (2022) is different. One reason is the First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW); the other is Russia's repeated statements suggesting the use of nuclear weapons in relation to its invasion of Ukraine. By focusing on the former, this paper examines nuclear weapon issues, looking ahead to the Tenth NPT Review Conference to be held this August.

1. Relationship between the TPNW and the NPT

(1) Origin of the TPNW

On July 7, 2017, the TPNW was adopted by the United Nations Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading towards Their Total Elimination with a vote of 122 States in favor, 1 against (Netherlands) and 1 abstention (Singapore), and was signed on September 20. Since ratification by only 50 countries is required for its entry into force (Article 15.1), the TPNW had been expected to come into effect earlier than it actually did, given the number of votes in favor of its adoption. On January 22, 2021, more than three years after its adoption, the TPNW finally entered into force. Since then, the number of acceding States has steadily increased, and 65 countries had become parties to the TPNW by the time of its First Meeting of States Parties (1MSP).

The origin of the TPNW can be traced back at least to the 2010 NPT Review Conference. Its Final Document expressed "deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons."^① This statement, with the 2011 resolution of the Council of Delegates of the International Red Cross and Red Crescent Movement referring to the same concern, culminated in the "humanitarian statement/resolution" (stating that nuclear weapons should never be used again under any circumstances, and the only way to guarantee this is the total, irreversible and verifiable elimination of nuclear weapons) that has been made and adopted annually since 2012. Following three international conferences on the humanitarian impact of nuclear weapons (Oslo, 2013; Nayarit and Vienna, 2014), the above-mentioned UN Conference was held based on the recommendations made by the 2016 UN Open-Ended Working Group; and the TPNW was finally adopted in 2017. Therefore, it might not be totally wrong to state that "the TPNW was born out of the NPT."

The TPNW is sometimes regarded as a complementary measure to Article VI of the NPT. The latter provides that: "Each of the Parties ... undertakes to pursue negotiations in good faith on effective measures relating to ... nuclear disarmament." Since the TPNW forbids the States Parties to "use or threaten to use nuclear weapons" (Article 1.1(d)) and mandates the verifiable and irreversible elimination of nuclear weapons (Article 4), it is argued that the Treaty plays a role in complementing the NPT as an implementing instrument of Article VI.

However, even if a claim that the TPNW emerged from the NPT and complements the latter's Article VI might not be completely wrong, their relationship is not so proximate as to be called complementary. Rather, the TPNW originated from a sense of disappointment with NPT processes.

The Final Document adopted by consensus at the Sixth Review Conference of the NPT in 2000 listed "[a]n unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament" as one of the 13 practical steps to implement Article VI.^② The Seventh Review Conference in 2005 was held with exacerbating nuclear proliferation issues, such as nuclear development by North Korea and Iran as well as the disclosure of A.Q. Khan's engagement in the nuclear black market. It ended with almost no substantive discussions at all due to a conflict between non-aligned States urging the fulfillment of "unequivocal undertaking" and other nations such as the United States emphasizing the nuclear proliferation issues and denying "unequivocal undertaking." In order to break through such negative trends, the Eighth Review Conference in 2010, which followed President Obama's speech in Prague the previous year advocating a "world without nuclear weapons", introduced the inhumanity of nuclear weapons use as a new perspective and tried to find a path toward nuclear weapons abolition from a humanitarian perspective.

(2) True relationship between the TPNW and the NPT

The view that the TPNW is complementary to the NPT does not necessarily seem correct. Indeed, the two treaties rest on fundamentally different perspectives on "nuclear deterrence." While not all the States Parties to the NPT, 193 in total, hold the same view, the NPT was made primarily to prevent the proliferation of nuclear weapons to other States than those already possessed them, considering that nuclear war would become more likely if the number of States possessing nuclear weapons increased. Therefore, possession of nuclear weapons by nuclear-weapon States was, in a sense, premised when the NPT was created. It is true that, based on Mexico's proposal, Article VI was drafted to pursue nuclear disarmament ultimately. However, it was a product of compromise and merely imposes an obligation to "pursue negotiations in good faith" toward nuclear disarmament. It is at least clear that nuclear-weapon States have acceded to the NPT based on the assumption that they can maintain nuclear weapons and nuclear deterrence.

In contrast, the TPNW prohibits the use and the threat of use of nuclear weapons (Article 1.1(d)) as mentioned above and thus rejects nuclear deterrence outright. This is because the TPNW is incompatible with nuclear deterrence given that nuclear deterrence entails deterring aggression by the threat of use of nuclear weapons. The TPNW also prohibits its States Parties from assisting, encouraging, or inducing others to engage in any activity prohibited to a State Party under the Treaty (Article 1.1(e)). States under a nuclear umbrella would be likely to act in violation of such prohibitions of the Treaty. Therefore, the obligations under the TPNW are incompatible with the status and situations of nuclear armed States as well as their allies. That is why no nuclear-armed States and their allies have ever joined or signed the TPNW.

As such, the TPNW and the NPT rest on fundamentally different stances and values regarding nuclear weapons and nuclear deterrence. That is why, when the TPNW was adopted, the author raised this point and expressed concern that, in the NPT processes, the TPNW might disclose not only tensions between nuclear-weapon States and non-nuclear-weapon States but also between non-aligned States and nuclear allies among non-nuclear-weapon States that had theretofore remained relatively latent. In fact, the budding of such conflict had already been detected in moves to draft and adopt humanitarian statements/resolutions since 2013.^③ The 1MSP provided the author with an opportunity to judge the validity of such concerns.

2. First Meeting of States Parties to the TPNW

The 1MSP to the TPNW was originally to be held within a year of its entry into force (Article 8.2). However, it was postponed twice due to the COVID-19 pandemic and finally held in Vienna on June 21-23, 2022. The following highlights some of the noteworthy aspects of the meeting.

(1) Relationship between the TPNW and the NPT

First, the general debate was marked by a mood of celebration over the entry into force of the TPNW. It was argued that its entry into force made it possible to prohibit nuclear weapons under international law and fill the gap in the international legal regime banning weapons of mass destruction together with the Biological Weapons Convention and the Chemical Weapons Convention. This was also welcomed in a 16-paragraph political declaration of the 1MSP (the Vienna Declaration).^④ The adherence to the TPNW also expanded, and with the deposit of the instrument of ratification by Guatemala, all the countries in Central America became States Partiers, a fact which was pointed out repeatedly.

Second, all the statements referring to the relationship between the TPNW and the NPT stressed the complementarity of both treaties. Although this might be natural given that all parties to the TPNW also have acceded to the NPT, the author had the impression that the non-aligned States were being careful not to generate any undesirable conflict between the TPNW and the NPT. In the Vienna Declaration, they also confirmed that the NPT is the "cornerstone of the disarmament and non-proliferation regime," and expressed their commitment to "work constructively with all NPT States Parties to achieve their shared objectives," by also referring to the complementarity of the two.^⑤

Such messages were not necessarily conveyed only by TPNW States Parties in a unilateral way, however. Among those who have not signed or ratified the TPNW, as many as 34 countries participated in the 1MSP as observers.^⑥ They included NATO members such as Belgium, Germany, the Netherlands and Norway, as well as Australia, another nuclear ally. NATO members stated that, while they were not able to join the TPNW because it would collide with their NATO membership, they shared the goal of achieving a world free of nuclear weapons (a statement that sounds obvious given the occasion), and promised constructive dialogue and cooperation.^⑦ This indicates that some of the nuclear allies do not necessarily reject the TPNW outright.

(2) Relationship with Russia's invasion of Ukraine

Third, concerning Russia's invasion of Ukraine that started in February 2022, President Putin, in his nationwide speech on the first day of the invasion, stated that Russia is "one of the most powerful nuclear powers in the world," and suggested potential use of nuclear weapons by saying that, if other States intervened from the outside, "the consequences will be such as you have never faced before in your history."^⑧ However, few TPNW States Parties made statements squarely criticizing this behavior by naming Russia, or at least such criticism did not feature prominently in the meeting (Ireland and Malta were among the few exceptions). Beyond being disappointed, the author was genuinely surprised by the fact that there was little condemnation for the threat of nuclear weapons use three months earlier, which had been made as if to ridicule the TPNW, one of whose most important pillars is the prohibition of the use and the threat of use of nuclear weapons.

Whereas the Vienna Declaration states that the States Parties (1) are "alarmed and dismayed" by threats to use nuclear weapons and (2) condemn unequivocally "any and all nuclear threats" whether they be explicit or implicit and irrespective of the circumstances,^⑨ these expressions are (1) too lukewarm and (2) too general in light of the reality the world is witnessing.^⑩ They stood in stark contrast to the strong criticisms by observer States such as Sweden, Germany, Switzerland and the Netherlands naming Russia and firmly denouncing its invasion of Ukraine and its threat to use nuclear weapons.

(3) Deadlines for destruction and removal of nuclear weapons

Fourth, perhaps the most important subjects to be decided at the 1MSP were (1) deadlines for a State Party that owns, possesses, or controls nuclear weapons to destroy them and (2) deadlines for the removal of nuclear weapons from nuclear-hosting States, as stipulated in Article 4.2 and 4.4. This issue was settled surprisingly swiftly. It was agreed that (1) the nuclear weapons destruction should be completed within 10 years plus a possible extension of up to five years in exceptional circumstances (this formula is almost the same as the CWC^⑪) and (2) the nuclear weapons removal should be completed within 90 days.^⑫

The author had been wondering how deadlines could be determined in the absence of States with nuclear weapons. Yet, they seem to have been easily agreed because nuclear-armed States would be unlikely to join the TPNW while possessing nuclear weapons, now and in the future. Regarding the deadline for destruction, it should have been clarified whether the starting point for the 10-year deadline is when the State in question joins the TPNW (probably so), or when the TPNW entered into force.

(4) Intersessional mechanism

Fifth, the Meeting of States Parties to the TPNW is held in principle every two years (Article 8.2). The 1MSP was only three days long, which is far shorter than the four-week NPT Review Conferences, and thus agreed on only minimal decisions such as matters essential to the Treaty and establishment of frameworks for the future. Many of the issues will be worked out through informal consultations during the intersessional period before the next Meeting of States Parties.

For this purpose, a Coordination Committee^⑬ was established, under which three informal working groups were also formed on universality (co-chaired by South Africa and Malaysia), on victim assistance, environmental remediation, international cooperation and assistance (co-chaired by Kazakhstan and Kiribati) and on the implementation of Article 4, including the future designation of (a) competent international authority(ies)^⑭ (co-chaired by Mexico and New Zealand), to coordinate efforts to implement the Treaty and decisions made by the 1MSP. In addition, an informal facilitator on cooperation with the NPT and other relevant nuclear disarmament and non-proliferation instruments (Ireland) and a Gender Focal Point (Chile) were established under the Coordination Committee.^⑮

It was also decided to establish a Scientific Advisory Group (SAG) to review the status of and developments regarding nuclear weapons, nuclear weapon risks, the humanitarian consequences of nuclear weapons, nuclear disarmament and other related issues. The SAG is mandated to report its findings to the next Meeting.^⑯ It will also advise on requirements for extending the deadline for nuclear weapons destruction.^⑰

The above is an overview of the intersessional mechanism created by the 1MSP. Given that preparations for the 1MSP also rested on a similar mechanism (utilizing (co-)facilitators), it is expected that the above intersessional mechanism for the next session of the MSP will also function effectively.

(5) Close relationship between the TPNW and NGOs

Finally, non-governmental organizations (NGOs) had a conspicuous presence at the 1MSP as if to symbolize the fact that the adoption of the TPNW had been promoted under the leadership of NGOs led by the International Campaign to Abolish Nuclear Weapons (ICAN). First, the number of NGO participants was large; the ratio of NGO participants among all participants was roughly equal to that of States Parties plus observers (States and intergovernmental organizations (IGOs)). In the general debate, speeches by NGOs (including the mayors of Hiroshima and Nagasaki) were made in between speeches by States Parties (while those by observer States and IGOs were made all together at the end). This gave the impression that the lines separating States Parties and NGOs have been significantly blurred. Concerning the number of papers submitted, two position papers were submitted by States Parties^⑱ (nine other working papers were submitted, including those by the then President-designate, a facilitator and co-facilitators of specific issues in their respective capacities), while 38 working papers were submitted by NGOs.^⑲

Even more noteworthy is the participation of NGOs in the TPNW processes after the 1MSP. In addition to participation as observers in the above-mentioned Coordination Committee, the International Committee of the Red Cross (ICRC) and ICAN will also be involved as observers in each of the informal working groups. The Co-Chairs of the informal working groups may invite interested Signatory States, experts and civil society partners as observers (with prior communication to States Parties).^⑳ These efforts seem to indicate a new form of participation that provides NGOs with opportunities for wider and more substantive participation in nuclear weapons-related inter-States meetings, which had been almost exclusively State-centered before.

Conclusion - Toward the NPT's Tenth Review Conference

The year 2020 marked a half-century from the entry into force of the NPT and a quarter-century from the decision on its indefinite extension. Although the Tenth NPT Review Conference was postponed to 2022 because of the global COVID-19 pandemic, it will surely be a milestone meeting. Moreover, during the two years of postponement, a series of serious or significant events in relation to nuclear weapons occurred: Russia's invasion of Ukraine and its accompanying threat of use of nuclear weapons, as well as the entry into force of the TPNW and its 1MSP.

The former indicated that nuclear deterrence can be used for the nefarious purpose of carrying out aggression without being impeded by other States and, ironically, that proved to be effective. However, this further entails another problem: the danger of nuclear proliferation. What is worse, nuclear proliferation could increase the likelihood of nuclear weapons use. If the founding philosophy of the TPNW was that "nuclear weapons should never be used again under any circumstances," the1MSP should have engaged in more in-depth discussions on this issue, but it did not. As seen in other forums, there was probably a desire by States Parties to avoid becoming involved in a conflict between the West and Russia or complicating their bilateral relations with Russia. In the upcoming NPT Review Conference, this issue will be discussed as a major topic, especially by Western States. It is important that many nations unite under the banner of non-use and non-proliferation of nuclear weapons as an urgent and pressing issue.

(The original Japanese version of this paper is dated July 13, 2022.)

---