The Treaty on the Prohibition of Nuclear Weapons (TPNW) entered into force on January 22, 2021 and is being celebrated by many as the dawn of a new nuclear order.  The treaty is the first of its kind in that it comprehensively bans the development and possession of nuclear weapons and is a result of 50 years worth of attempts to curb the proliferation of such weapons. Its proponents argue that the treaty challenges the hegemony and moral exceptionalism of the states that continue to possess nuclear weapons. This article analyses the efficacy of these claims by examining the treaty’s key provisions and arguments by acolytes and opponents as to whether it is likely to achieve its aims. The article also examines Pakistan’s stance on the treaty and explores its proposed persistent objector status .
Evolution of Nuclear Law: From PTBT to TPNW
After nuclear weapons were used for the first and only time in Hiroshima and Nagasaki, concerns arose in the international community as to the scale of destruction wrought by such weapons as well as worries that they may usher in another world war. This led to the creation and development of international nuclear law, a field that has undergone significant evolution in the course of the last seven decades. Efforts to begin nuclear regulation started with the Partial Nuclear Test Ban Treaty (PTBT) in 1963 which banned the testing of nuclear weapons in the atmosphere, outer space and underwater. Whilst the treaty has widespread acceptance, some states, such as France and China remain non-parties.
A seminal agreement in the nuclear non-proliferation regime was the Nuclear Non-Proliferation Treaty (NPT) of 1970 which aimed to prevent the spread of nuclear weapons and nuclear weapons technology. Under the treaty, non-nuclear states were to not develop or acquire nuclear weapons and states with nuclear weapons were to pursue negotiations in good faith to ultimately lead to complete nuclear disarmament. Despite having 191 global signatories, the treaty has failed to achieve its objectives as nuclear weapon states never made progress in the direction of disarmament. Moreover, states with nuclear weapons, such as India and Pakistan never signed it believing it merely preserved the status of the nuclear ‘haves’ at the expense of the ‘have nots’. Similarly, Israel which has never officially declared the possession of nuclear weapons is also not party to it while North Korea withdrew from the treaty once it was caught violating the terms of the treaty by starting an illegal nuclear weapons program.
In addition to the PTBT and the NPT, there have also been other attempts to regulate the global nuclear regime. These include the Comprehensive Nuclear-Test Ban Treaty (CTBT) and the Fissile Material Cut-Off Treaty (FMCT). The CTBT extends the scope of the PTBT by banning nuclear testing in all environments. However, it is not in force as the requirement that 44 identified states sign it, including nuclear weapon states like India, Pakistan, and North Korea, has not been met. Furthermore other nuclear powers like the United States, China and Israel have not ratified it. The FMCT, on the other hand, proposes a prohibition on the production of fissile material for use in nuclear weapons.  This treaty has never proceeded past the negotiation stage as Pakistan has repeatedly blocked the Conference on Disarmaments’s efforts citing its discriminatory nature. 
A new and more comprehensive treaty addition to the nuclear non-proliferation regime was deemed necessary, in part because of the failure of some of the aforementioned agreements and also because these treaties focused on regulating specific aspects of the nuclear regime, i.e. testing, proliferation etc, whereas the TPNW does all of the above, but goes one step further by calling for the complete elimination of nuclear weapons. Article 1 of the treaty reiterates the obligations in previous nuclear treaties by prohibiting development, testing or transfer of nuclear weapons. However, it also prohibits the use or threat of using nuclear weapons. Article 4 of the treaty calls for nuclear weapons states to remove their nuclear weapons from operational status and work towards eliminating their nuclear weapons programs.
However, none of the nuclear weapon states have yet signed or ratified it and are unlikely to do so.
The Question of Enforcement
Anti-nuclear activists argue (and hope) that as more and more countries become parties to the treaty, its provisions will become part of customary international law. As a result, there will be a point where even the nuclear weapons states feel obligated to abandon their nuclear weapons programs. This view is overly utopian because customary international law is still consent based in that it contains the persistent objector rule. As long as a state has consistently objected to an international custom during its formative stage, and the objection has been clearly expressed and made known to other states, then such a rule of customary international law shall not apply to it. An analysis of the statements of nuclear weapons states as well as the fact that none of them even took part during its negotiations phase shows that the persistent objector rule applies to them with regards to the TPNW.
Of all the Nuclear Treaties cited in this article, Pakistan is only signatory to the PTBT. Pakistan has refused to the NPT citing its allegedly discriminatory nature. Pakistan also cites its right to self-defence as a reason for not signing the NPT. In contrast to the NPT, Pakistan’s stance regarding the CTBT is more favourable. Despite not being a signatory, Pakistan has always spoken in favour of test bans and has gone so far as establishing a unilateral moratorium on testing. Pakistan has always maintained that it will sign the CTBT as long as India does the same. In recent times, Pakistan has also declared that it would consider transforming this moratorium into a bilateral agreement with India.
As far as the TPNW is concerned, as mentioned earlier, Pakistan is not party to the treaty. Pakistan’s Foreign Office recently stated that Pakistan is not bound by the terms of the treaty. Pakistan’s reservations with regards to the treaty are that none of the nuclear weapon states were involved in its negotiations, and that the treaty fails to “account for vital security considerations of each state.”
With regards to the possible development of customary International Law, the Foreign Office stressed that “Pakistan stresses that this treaty neither forms a part of nor contributes to the development of customary international law in any manner.”
Hence, even if the TPNW were to crystallise into custom, Pakistan would be considered a persistent objector, and the expectations and obligations associated with the TPNW would not apply to it.
One Step Closer to a Ban?
There is an oft-cited concern that the TPNW fails to account for on-ground realities and the security considerations of states, especially the nine nuclear weapon states. This is something that has been echoed by all nuclear weapon states, as well as by international organisations like NATO.
The case for disarmament is also not helped by what one may call the Libyan Example. Even prior to the 2011 Western-backed uprising, Libyans expressed discontent regarding the lack of economic benefits despite the fact that Libya voluntarily gave up its nuclear weapons program. Furthermore, the 2011 NATO-backed military intervention in Libya and its subsequent spiral into civil strife reiterates the belief, especially among smaller countries like Pakistan, North Korea and perhaps Iran, that nuclear weapons are essential for their survival and security.
Even if the TPNW is to become an international norm, its proponents tend to overlook the fact that nuclear history is riddled with examples of states violating established international rules and norms. For example, in 1998, Russia, despite being a party to the NPT, transferred nuclear reactors to India, even though the latter is not a party to the NPT. Similarly, in recent years, the United States has been forging a closer relationship with India as it views India to be part of a balancing coalition to contain China’s growth. A glaring example of this was the 2008 US-India Nuclear Deal under which the United States transferred dual-use nuclear technology to India despite India not being a member of the NPT. Similarly, the United States has also been lending support to India’s bid of securing membership to the Nuclear Suppliers Group which, according to established nuclear norms, is also contingent on being party to the NPT. These examples show that in the battle between ideals of justice and ethics, and what states perceive to be their national interests, the Mytilenean example of interests taking precedence almost always holds true.
New York Post columnist Sameul Grafton once remarked that ‘Even after you give the squirrel a certificate which says he is quite as big as any elephant, he is still going to be smaller, and all the squirrels will know it and all the elephants will know it.’  Skeptics of the Treaty on the Prohibition of Nuclear Weapons might argue that the ‘squirrels’ have ignored on-ground military and strategic realities and used their sheer numbers to push forward something that might end up being nothing more than a moral victory.
Having said that, one cannot discount the fact that the TPNW has, for the first time, brought a sense of universality to the dialogue on nuclear weapons and disarmament. It encourages disarmament dialogue through trade, investment and tourism talks with nuclear states in bid to persuade them to ratify the treaty. This will be an uphill (and perhaps impossible) task but as Zia Mian points out, it would require collaboration between civil society and political entities, as well as political resolve in order to push through the demands of making nuclear weapons illegal to use and possess. Such an effort would also require persistent highlighting of the ethical considerations involved in the possession of nuclear weapons, as well as pushing for their use to be designated as crimes against humanity. The results might not come about about swiftly, but so long as there is a concerted effort, there is always room for hope.
——— References ———
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