TPNW MEETING OF STATE PARTIES 2022: PROBLEMS TO BE ADDRESSED

#1 · 26th May 2022, 10:21 am

Quote from Faraz Haider on 26th May 2022, 10:21 am
The Treaty on the Prohibition of Nuclear Weapons (TPNW) has stirred a debate about its impact on the Non-Proliferation Treaty (NPT), specifically as to the benefits, faults, improvements areas, and a broader convergence or divergence within the non-proliferation regime. There is a lot to be unpacked there, some of which is laid out below, especially in the context of its first Meeting of State Parties (MSP) which is due to take place at the Austria Center in Vienna, Austria from 21^st to 23^rd June 2022. The MSP can be seen as the TPNW equivalent of the NPT Review Conferences (NPT RevCons). This inaugural MSP, after its entry into force in January 2021, is tasked with dealing with fixing the lack of specifics because their absence makes the TPNW even more damaging to the non-proliferation regime than its initial concept.
Fair Intentions and Rosy Eyes
On the face of it, the Treaty on the Prohibition of Nuclear Weapons (TPNW) is a good and honest initiative with a positive intention of disarmament that seeks to realize Article VI of the NPT. Also, to its credit is the fact that it will be the first of its kind and legally binding instrument once it enters into force, with a focus on adding further pressure on just using nuclear weapons but also on their possession, control or location on a state’s territory through a snowballing norms momentum. Another positive that can be drawn from the treaty is that it has given an impetus to the disarmament debate and to efforts that had died down over the years as the nuclear weapon states continued to underperform in this regard. The emergence of the TPNW shows that if promises go unfulfilled then, sooner or later, there will come a new framework to deliver on them through another route. This is an important lesson and even though it is well intentioned, the treaty presents serious flaws, contradictions, and counterproductive elements that work against its stated intents.
TPNW in Utopia
The TPNW, from its inception to maturity, has had faults that undermine its efficacy. Various international organizations, members of civil society, and Non-Nuclear Possessor States (NNPS) negotiating and formulating directives of disarmament to Nuclear Possessor States (NPS) is intrinsically problematic. In no way have the major stakeholders, or those behind the cause of potential disaster that the treaty seeks to protect against, been involved; this makes its practicality close to none. Also, the TPNW’s primary argument is based on norms and how they can be used to pressure and convince NPS to join the wagon. Yet, it fails to realize that state actions, especially those in the strategic, defense, and traditional security domains have strictly been governed by a realist understanding where moral norms are not a part of the vernacular.
TPNW’s in the Non-Proliferation Regime
The TPNW is another instrument of the NPT based non-proliferation regime but one that may lead to its weakening. Even though it entered into force in January 2021, all NPS and those enjoying their security guarantees and extended deterrence have and will likely continue to remain out of the treaty, indicating a lack of credibility and efficacy of the TPNW. This will continue to be the case as security concerns and the nuclear use question has persisted since conflicts fester and new flames rise from old ashes: the European theater with Russia’s attack on Ukraine re-emerges as a flash point, the intensifying great power rivalry between the US and China creates instability, and the Pakistan-India dynamics of tension continue.
The preamble of the treaty shows its acceptance of the NPT as the pinnacle of the regime and also voices support for other instruments such as the Comprehensive Test Ban Treaty (CTBT). One of the reasons the NPT was acceptable and has sustained itself all these years is due to the grand bargain, where there are enough incentives for its Non-Nuclear Weapon States (NNWS) and Nuclear Weapon States (NWS). This includes the peaceful use of nuclear energy and disarmament by NWS to address the security concerns while allowing NWS to have their nuclear weapons program due to stated security and strategic concerns. However, the TPNW focuses more on the ban on possessing, developing, using, and hosting nuclear weapons without dealing with other aspects of security because of which many nuclear possessor states acquired their nuclear weapons and have continued on that track.
Weakening of the Non-Proliferation Regime
The TPNW creates an alternative setup and legal obligations for states, resulting in ambiguity on which and whether states will abide by the NPT at all or with the TPNW. Ambiguity in any legal matter creates gray areas to be exploited which can only work to the detriment of the TPNW’s intention and the larger NPT based regime. Also, without addressing the security concerns of the nuclear possessor states and those enjoying extended deterrence and nuclear umbrellas, there would be a reason to simply disregard the TPNW while also lowering the importance of adhering with the NPT as a new treaty has entered the arena. A lowered adherence to both can only seriously damage the non-proliferation regime and create instability since those adhering to either would be NNPS who rarely bring nuclear use and proliferation into question. In one possibility, the ambiguity and instability of the non-proliferation regime, and resulting heightened security concerns, would give cause to NNPS to work towards the NPS category because the existing NPS would be less inclined to abide by the NPT or the TPNW.
The ambiguity and weakening of the non-proliferation regime are exacerbated through conflicting elements between the TPNW and the NPT. Despite acceptance of the NPT and its importance in the preamble, and with it having been stated in Article 18 that the TPNW will not affect the obligations of the states with the NPT, other articles, such as Article 1, calls for a blanket ban on the use and possession of nuclear weapons. So, it is not just a conflict with the NPT but within its own articles. Meaning that on top of undermining the NPT based regime, TPNW’s internal contradictions will undermine its own strength.
The NPT based regime will also be weakened because the TPNW would essentially recognize NPS such as Pakistan, India, Israel and North Korea as official NWS if they choose to join. The formal recognition as NWS will contradict the NPT and open up questions about what the newly inducted nuclear states have a right to, in terms of their legitimization as one treaty accepts them but the other doesn’t. Furthermore, without a substantive incentive grounded in reality to those NPS, they will have no reason to actually give up the nuclear weapons programs. The existence of a treaty that is legally binding and the parallel blatant disregard would undermine the credibility of the whole regime but also practically make the TPNW simply a paper tiger.
Another way in which it undermines the current non-proliferation regime is through its own cutoff date (7 July, 2017). States that have and then completely eliminate their nuclear weapons program after that date would have to guarantee that it has actually been irreversibly eliminated through some ‘competent international authority’ which is yet to be decided. First, that creates ambiguity which states can use to meander through their obligations under the TPNW. However, the more damaging aspect is that a NPS can join the treaty, have itself essentially recognized as a NWS, and then exploit said ambiguity. This is made worse with the provision that NPS can give a roadmap of irreversible elimination of their nuclear weapons program and then doge it in practicality citing the primacy of national security and necessity of nuclear weapons possession, and even use, under certain conditions using previous International Court of Justice opinions. This would allow the de facto NWS, if they want, to skirt around the NPT to achieve legitimacy without having to adhere to either instrument due to increased legal ambiguity and sanded down teeth stemming from said ambiguity.
There have been other efforts at strengthening the non-proliferation regime and disarmament including the NPT Review Conferences, the Fissile Material Cut-Off Treaty (FMCT), and the CTBT. With the inclusion of the TPNW, it adds another component to negotiate and consolidate. It can work against those existing efforts by diverting attention of NNPS and NPS towards an entirely new treaty that lacks teeth, more so than the ones before it. One example is the lack of verification mechanisms in the TPNW in contrast to the CTBT which does have such provisions. Additionally, these existing instruments already have enough divergence that require due diligence and concerted state effort to resolve. The inclusion of another could damage those existing efforts, divert them, and create a host of legal and norms-based ambiguities that would only add to the list of things undermining the NPT based non-proliferation regime instead of strengthening it, which the TPNW claims to be its intent.

The Treaty on the Prohibition of Nuclear Weapons (TPNW) has stirred a debate about its impact on the Non-Proliferation Treaty (NPT), specifically as to the benefits, faults, improvements areas, and a broader convergence or divergence within the non-proliferation regime. There is a lot to be unpacked there, some of which is laid out below, especially in the context of its first Meeting of State Parties (MSP) which is due to take place at the Austria Center in Vienna, Austria from 21^st to 23^rd June 2022. The MSP can be seen as the TPNW equivalent of the NPT Review Conferences (NPT RevCons). This inaugural MSP, after its entry into force in January 2021, is tasked with dealing with fixing the lack of specifics because their absence makes the TPNW even more damaging to the non-proliferation regime than its initial concept.

Fair Intentions and Rosy Eyes

On the face of it, the Treaty on the Prohibition of Nuclear Weapons (TPNW) is a good and honest initiative with a positive intention of disarmament that seeks to realize Article VI of the NPT. Also, to its credit is the fact that it will be the first of its kind and legally binding instrument once it enters into force, with a focus on adding further pressure on just using nuclear weapons but also on their possession, control or location on a state’s territory through a snowballing norms momentum. Another positive that can be drawn from the treaty is that it has given an impetus to the disarmament debate and to efforts that had died down over the years as the nuclear weapon states continued to underperform in this regard. The emergence of the TPNW shows that if promises go unfulfilled then, sooner or later, there will come a new framework to deliver on them through another route. This is an important lesson and even though it is well intentioned, the treaty presents serious flaws, contradictions, and counterproductive elements that work against its stated intents.

TPNW in Utopia

The TPNW, from its inception to maturity, has had faults that undermine its efficacy. Various international organizations, members of civil society, and Non-Nuclear Possessor States (NNPS) negotiating and formulating directives of disarmament to Nuclear Possessor States (NPS) is intrinsically problematic. In no way have the major stakeholders, or those behind the cause of potential disaster that the treaty seeks to protect against, been involved; this makes its practicality close to none. Also, the TPNW’s primary argument is based on norms and how they can be used to pressure and convince NPS to join the wagon. Yet, it fails to realize that state actions, especially those in the strategic, defense, and traditional security domains have strictly been governed by a realist understanding where moral norms are not a part of the vernacular.

TPNW’s in the Non-Proliferation Regime

The TPNW is another instrument of the NPT based non-proliferation regime but one that may lead to its weakening. Even though it entered into force in January 2021, all NPS and those enjoying their security guarantees and extended deterrence have and will likely continue to remain out of the treaty, indicating a lack of credibility and efficacy of the TPNW. This will continue to be the case as security concerns and the nuclear use question has persisted since conflicts fester and new flames rise from old ashes: the European theater with Russia’s attack on Ukraine re-emerges as a flash point, the intensifying great power rivalry between the US and China creates instability, and the Pakistan-India dynamics of tension continue.

The preamble of the treaty shows its acceptance of the NPT as the pinnacle of the regime and also voices support for other instruments such as the Comprehensive Test Ban Treaty (CTBT). One of the reasons the NPT was acceptable and has sustained itself all these years is due to the grand bargain, where there are enough incentives for its Non-Nuclear Weapon States (NNWS) and Nuclear Weapon States (NWS). This includes the peaceful use of nuclear energy and disarmament by NWS to address the security concerns while allowing NWS to have their nuclear weapons program due to stated security and strategic concerns. However, the TPNW focuses more on the ban on possessing, developing, using, and hosting nuclear weapons without dealing with other aspects of security because of which many nuclear possessor states acquired their nuclear weapons and have continued on that track.

Weakening of the Non-Proliferation Regime

The TPNW creates an alternative setup and legal obligations for states, resulting in ambiguity on which and whether states will abide by the NPT at all or with the TPNW. Ambiguity in any legal matter creates gray areas to be exploited which can only work to the detriment of the TPNW’s intention and the larger NPT based regime. Also, without addressing the security concerns of the nuclear possessor states and those enjoying extended deterrence and nuclear umbrellas, there would be a reason to simply disregard the TPNW while also lowering the importance of adhering with the NPT as a new treaty has entered the arena. A lowered adherence to both can only seriously damage the non-proliferation regime and create instability since those adhering to either would be NNPS who rarely bring nuclear use and proliferation into question. In one possibility, the ambiguity and instability of the non-proliferation regime, and resulting heightened security concerns, would give cause to NNPS to work towards the NPS category because the existing NPS would be less inclined to abide by the NPT or the TPNW.

The ambiguity and weakening of the non-proliferation regime are exacerbated through conflicting elements between the TPNW and the NPT. Despite acceptance of the NPT and its importance in the preamble, and with it having been stated in Article 18 that the TPNW will not affect the obligations of the states with the NPT, other articles, such as Article 1, calls for a blanket ban on the use and possession of nuclear weapons. So, it is not just a conflict with the NPT but within its own articles. Meaning that on top of undermining the NPT based regime, TPNW’s internal contradictions will undermine its own strength.

The NPT based regime will also be weakened because the TPNW would essentially recognize NPS such as Pakistan, India, Israel and North Korea as official NWS if they choose to join. The formal recognition as NWS will contradict the NPT and open up questions about what the newly inducted nuclear states have a right to, in terms of their legitimization as one treaty accepts them but the other doesn’t. Furthermore, without a substantive incentive grounded in reality to those NPS, they will have no reason to actually give up the nuclear weapons programs. The existence of a treaty that is legally binding and the parallel blatant disregard would undermine the credibility of the whole regime but also practically make the TPNW simply a paper tiger.

Another way in which it undermines the current non-proliferation regime is through its own cutoff date (7 July, 2017). States that have and then completely eliminate their nuclear weapons program after that date would have to guarantee that it has actually been irreversibly eliminated through some ‘competent international authority’ which is yet to be decided. First, that creates ambiguity which states can use to meander through their obligations under the TPNW. However, the more damaging aspect is that a NPS can join the treaty, have itself essentially recognized as a NWS, and then exploit said ambiguity. This is made worse with the provision that NPS can give a roadmap of irreversible elimination of their nuclear weapons program and then doge it in practicality citing the primacy of national security and necessity of nuclear weapons possession, and even use, under certain conditions using previous International Court of Justice opinions. This would allow the de facto NWS, if they want, to skirt around the NPT to achieve legitimacy without having to adhere to either instrument due to increased legal ambiguity and sanded down teeth stemming from said ambiguity.

There have been other efforts at strengthening the non-proliferation regime and disarmament including the NPT Review Conferences, the Fissile Material Cut-Off Treaty (FMCT), and the CTBT. With the inclusion of the TPNW, it adds another component to negotiate and consolidate. It can work against those existing efforts by diverting attention of NNPS and NPS towards an entirely new treaty that lacks teeth, more so than the ones before it. One example is the lack of verification mechanisms in the TPNW in contrast to the CTBT which does have such provisions. Additionally, these existing instruments already have enough divergence that require due diligence and concerted state effort to resolve. The inclusion of another could damage those existing efforts, divert them, and create a host of legal and norms-based ambiguities that would only add to the list of things undermining the NPT based non-proliferation regime instead of strengthening it, which the TPNW claims to be its intent.