[This article is written by our Empaneled Contributor Sarthak Roy]
The UNSC (United Nations Security Council) recently passed Resolution 2371 to impose new sanctions on North Korea for its continued intercontinental ballistic missile (ICBM) tests and violations of UN resolutions. While 122 UN member countries are keen on a nuclear weapon free world, the nine nuclear weapon powers along with the 28 NATO nations chose to abstain from the adoption process on a Draft “Treaty on Prohibition of Nuclear Weapons” (TPNW) on 07 July 2017. These countries reasoned that the Draft Treaty will not be able to address threats to the existing international security architecture by flagrant violators of international law. Their reference was primarily to North Korean nuclear weapon capabilities.
Senior advocate of Supreme Court of India Harish Salve who represented the country at the ICJ in 2016 against the Marshall Islands justified New Delhi’s refusal to sign the NPT based on “enlightened self-interest and for considerations of national security”. India, along with Pakistan, North Korea and Israel are the only states that have not ratified the existing Nuclear Non-Proliferation Treaty (NPT). India initiated its nuclear weapons program to contain threats posed initially from a nuclear armed China and subsequently Pakistan which was a crypto-nuclear weapon power. It is necessary to remember that India was a reluctant nuclear power which took 24 years between its first test at Pokharan in 1974 and the subsequent test in 1998.
The Indian Prime Minister’s Office, released its Nuclear Doctrine in 2003 which highlighted a policy of ‘No First Use’ of nuclear weapons unless faced with a nuclear attack. India has operated outside the NPT regime through civil agreements with the US. This has led to New Delhi’s continued exclusion from the 48-member Nuclear Suppliers Group -- a move which China supported.
The legality of nuclear weapons under international law remains a hotly contested fact, which is evident from the 1996 Advisory opinion rendered by the International Court of Justice which “could not conclude definitively whether, use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. Thus, it is imperative in such grave circumstances, to envisage the world without nuclear weapons through diplomacy.
The UNGA’s (United Nations General Assembly) adoption of the Draft Treaty is a culmination of tireless efforts over a year by the UN’s Open Ended Working Group (OEWG). The OEWG convened pursuant to UNGA resolution 70/33 and was thus mandated to, formulate “legal provisions and norms that would need to be concluded in order to attain and maintain the world without nuclear weapons”. Therefore, this treaty should provide temporary relief to all those concerned about the nefarious effects arising from the possible use or existence of such nuclear weapons.
This treaty attempts to “completely eliminate nuclear weapons” through prohibition for nation states to develop, test, use or possess nuclear weapons. It is a significant departure from the NPT. The NPT was universally criticised because it allowed states with existing nuclear capabilities to hold onto, and even develop nuclear weapons. It is in this backdrop that the UNGA adopted TPNW in July 2017.
Pursuant to Article 4, TPNW’s expansive scope mandates states to dismantle any existing nuclear weapon programs as well as remove weapons from operational status. It also ensures that all nuclear materials are to be used only for “peaceful nuclear activities”.
Today the status of the Treaty is only a draft which means states are yet to demonstrate any formal acceptance or approval to be bound by the terms since it will open for signature and subsequent ratification only from September 20th this year. Moreover, as per Article 15 of the Treaty, it shall only enter into force as a legally binding instrument once 50 states have deposited their instrument of ratification, approval or acceptance.
Given the prevalent international security architecture, TPNW, therefore, would not qualify to be customary international law, for obligations to be imposed on the international community. For any practice to become a custom under international law, the ICJ’s statute dictates that it must be “settled, widespread and consistent”. Due to persistent objections of nuclear weapons states and NATO states, there is an absence of opinio juris, a subjective element that requires practices and customs to be consciously accepted as law. On the 27th of July, 2017 US Pacific Fleet Commander Admiral Scott Swift brazenly remarked about using nuclear weapons against China on orders from US President. Such a nonchalant remark on the sidelines of a military exercise highlights the existential threats that the global community faces.
In such a strategic security environment, the significance of the draft treaty assumes importance. In the realm of international politics, changing narratives and comprehensive actions are long drawn, which cannot be achieved overnight with the adoption of a treaty. This was clearly the case of the NPT, which during its inception majority of nuclear power states did not support but gradually gained acceptance. Many international institutions have portrayed nuclear weapons as “an existential threat to the planet, global peace and the future survival of humanity” a collective liability, rather than a legitimate guarantor of stability or a national asset.
India has to address the need to delegitimize these weapons in a world characterized by nuclear proliferation threats emblematic in North Korea-Pakistan relations. India should provide greater voice across international forums thus leading to the progress of the Draft-Treaty. Importantly, the international community should not dismiss the normative ideals that the Draft-Treaty propounds to prevent risks of escalations from conventional to nuclear warfare.
About the Author:
Sarthak Roy is a 5th-year student of School of Law, Christ University, Bangalore. He has a keen interest in Public International Law, especially laws of war and use of force. He wishes to study public international law abroad, before coming back to India in the role of an academic, and a legal adviser to the Indian government. He always recalls his international law teacher for instilling the passion of international law and similarly wants to pass the same towards the young minds of future generations. He counts the works of Hersch Lauterpacht, James Crawford, Christopher Greenwood and Phillips Sands for being his constant motivation. In his final year of law school, he wishes to participate in the Jessup International Moot Court competition and test himself against the world's best.