Abr 20, 2015

Filling the legal gap: The prohibition of nuclear weapons


[Filling the legal gap: The prohibition of nuclear weapons]


At the December 2014 Conference on the Humanitarian Impact on Nuclear Weapons in Vienna, Austria made a pledge calling on

“all states parties to the NPT to renew their commitment to Article VI [of the 1968 Treaty on the Non-Proliferation

of Nuclear Weapons (NPT)], and to this end, to identify and pursue effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons.”1

The key “legal gap” that needs to be filled is
the explicit prohibition of nuclear weapons and establishment of a framework for their elimination. The other weapons of mass destruction, biological and chemical weapons, are prohibited and subject
to elimination processes through international legal instruments. It is past time that nuclear weapons are put on the same legal footing.

The “legal gap” regarding prohibition and elimination arises from various deficits in the regulation of activities involving nuclear weapons, as currently cod- ified. This includes legal deficits regarding the development, production, testing, transfer, acquisi- tion, transit, stockpiling, deployment, threat of use or use of nuclear weapons, as well as assistance, financing, encouragement, or inducement of these activities. The current international legal regulation

of nuclear weapons is fragmentary, with several instruments covering only certain areas or activities. The legal gap also arises because the rules in the existing instruments on nuclear weapons apply to different states in different ways. Thus what is needed is a comprehensive instrument that prohibits all activities involving nuclear weapons in all circum- stances for all states parties.

The table overleaf summarises the gaps in existing treaty law related to nuclear weapons. A treaty banning nuclear weapons, by categorically prohibiting nuclear weapons and establishing a framework and impetus for their elimination, would help to fill these gaps. Such a treaty would build on existing norms and reinforce existing legal instruments, but it would also close loopholes in the current legal regime that enable states to engage in nuclear weapon activities or otherwise to claim perceived benefit from their continued possession and deployment while purport- ing to promote their elimination.

The negotiation of a treaty banning nuclear weapons should fill the legal gap regarding the prohibition of nuclear weapons by providing clear common obliga- tions with respect to the issues outlined in the chart.2 Whilst some aspects of the current legal framework are to be applauded, the overall patchwork of partial regulation hampers development of a clear normative recognition that nuclear weapons are unacceptable. In doing so, it facilitates retention of these weapons by certain states, which may in turn incentivize proliferation. History shows that legal prohibitions of weapon systems—their possession as well as their use—facilitate their elimination. Weap- ons that have been outlawed increasingly become seen as illegitimate. They lose their political status and, along with it, the money and resources for their production, modernisation, proliferation, and perpetu- ation. Even if nuclear-armed states do not join initially, a treaty banning nuclear weapons would have a significant normative and practical impact.

States should commence negotiations in 2015 on a treaty banning nuclear weapons as an effective measure for nuclear disarmament. At a time when the nuclear-armed states continue to demonstrate their lack of commitment to pursuing tangible, good faith nuclear disarmament, as international tensions rise, and as the potential for accidents persists, banning nuclear weapons is an urgent necessity.