A. Negotiation Process

A notable feature of humanitarian disarmament instruments is that the negotiation process frames the discussion of the specific weapon in question in terms of human-centred interests as the ‘driving force’ behind the treaty instrument adopted.⁴⁸ The Ottawa Declaration of October 1996, for example, explicitly acknowledged that ‘the extreme humanitarian and socio-economic costs associated with the use of anti-personnel mines requires urgent action on the part of the international community to ban and eliminate this type of weapons’.⁴⁹ Furthermore, the negotiation process tends to be inclusive, flexible and innovative,⁵⁰ in which engaged States are ‘open to viewing civil society groups as the possessors and purveyors of expertise, field experience and energy potentially beneficial to multilateral negotiation processes’.⁵¹ The APMBC, for instance, was spearheaded by the International Campaign to Ban Landmines, which worked in conjunction with like-minded middle-power States, many of which had been heavily affected by anti-personnel mines long after the conclusion of armed conflicts.⁵² In addition, both the academic and scientific community and victims of the use of problematic weapons play a central role during the negotiation process,⁵³ using their experience and expertise to highlight the humanitarian effects of the prohibited weapon in question, thereby giving ‘a voice to the people whom the weapons endangered as well as ownership over the outcome to a range of participants’.⁵⁴

The TPNW negotiation process certainly reflects these identified trends.⁵⁵ The TPNW emerged from what is commonly referred to as the ‘Humanitarian Initiative’,⁵⁶ a global campaign which sought to reframe the debate around nuclear weapons towards a human-centred approach, with a particular emphasis on highlighting the catastrophic harm caused by nuclear weapons detonations on civilians.⁵⁷ This humanitarian reframing was explicitly included in the final document of the 2010 NPT Review Conference which noted the

‘deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for all States at all times to comply with applicable international law, including international humanitarian law’.⁵⁸

To further facilitate the reframing of nuclear weapons through a humanitarian lens, a series of ‘humanitarian conferences’ focusing upon the effects of nuclear weapon use were held in Oslo, Nayarit and Vienna between March 2013 and December 2014.⁵⁹ These conferences principally sought to raise awareness in both attending State participants and the wider public of ‘the devastating consequences of the use of nuclear weapons for the human being, as well as to assess the risk of nuclear war or of the accidental explosion of a nuclear weapon’.⁶⁰ The final Vienna Conference in December 2014 saw the adoption of the ‘Humanitarian Pledge’ by the Austrian Representative Michael Linhart, which noted the need to ‘identify, and pursue effective measures to fill the legal gap for the prohibition and elimination of nuclear weapons… in light of their unacceptable humanitarian consequences and associated risks’.⁶¹ Alongside the pledge, further ‘joint statements on the humanitarian consequences of nuclear weapons’ were also issued by Switzerland on behalf of 16 States at the NPT Preparatory Committee 2012.⁶² By the time the statement was delivered by New Zealand during the 2014 United Nations General Assembly (UNGA) First Committee, it was co-sponsored by 155 States,⁶³ while the humanitarian pledge had 127 co-sponsoring States by April 2016.⁶⁴ The growth of support for these various statements clearly reflects the broader swing in emphasis toward the humanitarian imperative of achieving nuclear disarmament which ultimately informed the TPNW process amongst participating States.⁶⁵

Following the second Open-Ended Working Group held in 2016 on taking forward multilateral disarmament, the UNGA First Committee adopted Resolution L.41, which again expressed deep concern ‘about the catastrophic humanitarian consequences of any use of nuclear weapons’, and called upon states to ‘convene in 2017 a United Nations Conference to negotiate a legally binding instrument to prohibit nuclear weapons leading towards their total elimination’.⁶⁶ The fact that the TPNW was subsequently negotiated outside of the consensus-based Conference on Disarmament also bucked the trend of traditional nuclear non-proliferation and disarmament negotiations too, as did the expeditious four weeks of formal negotiations across two sessions in March and June–July 2017.

Furthermore, the TPNW negotiation process was inclusive, taking ‘into account the perspectives of those who might be affected by nuclear weapons rather than focusing on the interest of states that had the potential to use them’.⁶⁷ Ruff in particular notes that the level of civil society participation throughout the Humanitarian Initiative and TPNW negotiation conference was unprecedented in nuclear non-proliferation and disarmament law.⁶⁸ The International Campaign to Abolish Nuclear Weapons (ICAN), for example, served as an ‘umbrella organization for nuclear-disarmament groups’,⁶⁹ providing a single, credible ‘point of contact’ for like-minded middle-power non-nuclear weapon states (NNWS), notably Ireland, Mexico, Austria and New Zealand, to organise their efforts.⁷⁰ The International Committee of the Red Cross (ICRC) also took on a more prominent role in nuclear disarmament discussions in the late 2000s.⁷¹ Following a powerful, humanitarian-framed speech given in 2010 by ICRC President Jakob Kellenberger recalling the vast devastation caused by nuclear weapons at Hiroshima,⁷² the International Red Cross and Red Crescent Movement released a Resolution in November 2011 endorsing the ‘framework of humanitarian diplomacy’. The Resolution appealed to all States to ‘conclude with urgency and determination negotiations to prohibit the use of and completely eliminate nuclear weapons through a legally binding international agreement’.⁷³

In addition, the academic community made a significant contribution to the three Humanitarian Conferences. Experts presented findings on the environmental,⁷⁴ economic and infrastructural consequences of nuclear weapon use,⁷⁵ alongside the dangers of nuclear risks and accidents.⁷⁶ Physician Ira Helfand, for example, presented a climate model which concluded that a limited nuclear exchange would result in devastating climatic change, global starvation and the collapse of the international agricultural system.⁷⁷ This evidence emphasised among participating NNWS the humanitarian imperative of prohibiting and eliminating nuclear weapons based upon their uncontrollable, catastrophic humanitarian effects.⁷⁸ In addition, hibakusha – survivors and descendants of the Hiroshima and Nagasaki bombings – including Tanaka Terumi and Setsuko Thurlow provided powerful testimonies of the physical, social and psychological impact of nuclear weapon use, describing first-hand the catastrophic harm and effects caused by nuclear weapons and exposure to radioactive fallout.⁷⁹ Alongside statements of support from the Holy See,⁸⁰ these speeches advanced the ‘moral’ imperative of eliminating nuclear weapons on the basis of their catastrophic impact on humanity.⁸¹

Finally, the involvement of experts and civil society groups continued throughout the TPNW negotiations sessions in 2017. Gibbons, for instance, notes that ICAN maintained its coordinating role by reviewing the latest developments and planning the upcoming day’s strategies.⁸² Other civil society groups including the Arms Control Association⁸³ and the ICRC presented working papers offering their expert insights on some of the core elements and features of the ban treaty.⁸⁴ Perhaps the most visible instance of civil society participation occurred during the First Session held between 27–31 March, where President Whyte Gómez convened two informal panel meetings, led by experts from civil society, to discuss matters of greater complexity such as verification issues and accession provisions.⁸⁵

B. Preambular Purpose

A further illustration of the TPNW’s humanitarian nature can be found within its preambular provisions.⁸⁶ As a general matter, treaty preambles do not contain legally-binding obligations for States parties,⁸⁷ but instead, may define ‘the purposes and considerations that led the parties to conclude the treaty’.⁸⁸ In this sense, the preamble forms part of a treaty’s overall context,⁸⁹ which for the purposes of treaty interpretation in particular can help determine the negotiating parties’ motivations for adopting the treaty, thus helping identify the object and purpose of the treaty in question.⁹⁰

Reflecting the humanitarian statements discussed in Part III.A, preambular paragraph 2 states that TPNW parties are ‘[d]eeply concerned about the catastrophic humanitarian consequences that would result from any use of nuclear weapons’.⁹¹ This immediately reframes the proposition that nuclear weapons effect the interests of humanity as a whole, thus informing the very object and purpose of the TPNW. Consequently, the preamble proceeds to emphasise that the elimination of nuclear weapons is the ‘only way to guarantee that nuclear weapons are never used again under any circumstances’.⁹² The preamble further frames the TPNW as human and victim-orientated by noting that States parties are ‘[m]indful of the unacceptable suffering and harm caused to the victims of the use of nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear weapons’.⁹³ This further illustrates the prioritisation of human and victim needs and interests, which are given extensive coverage within the TPNW preamble.⁹⁴

The preamble also reiterates that ‘the catastrophic consequences of nuclear weapons cannot be adequately addressed, transcend national borders, pose grave implications for human survival, the environment, socioeconomic development, the global economy, food security and the health of current and future generations, and have a disproportionate impact on women and girls, including as a result of ionizing radiation’.⁹⁵ This paragraph is clearly inspired by the scientific evidence presented during the three Humanitarian Conferences,⁹⁶ and the general conclusion noted at the first Oslo Conference that no State would be able to adequately respond to a nuclear weapon detonation.⁹⁷

In addition, Docherty also notes that the preamble ‘places the TPNW in a humanitarian legal framework’ through its detailed references to principles of international humanitarian law (IHL).⁹⁸ Following the approach of both the APMBC⁹⁹ and CCM,¹⁰⁰ the preamble reaffirms ‘the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law’.¹⁰¹ Paragraph 9 identifies specific IHL principles which must be respected, including:

‘the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment’.¹⁰²

Moreover, the preamble further declares ‘that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law’,¹⁰³ while proceeding to note that ‘any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience’.¹⁰⁴ Significantly, this reference goes considerably further than the ICJ’s conclusion reached in the Nuclear Weapons Advisory Opinion in 1996,¹⁰⁵ in which the Court suggested that the use of nuclear weapons would ‘generally’ be contrary to IHL principles, but could not ‘conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence’.¹⁰⁶ Although this preambular paragraph is certainly a controversial paragraph in light of the ICJ’s prior assessment,¹⁰⁷ given that one of the primary objectives of IHL is to ‘moderate the conduct of armed conflict and to mitigate the suffering that it causes’,¹⁰⁸ the ‘explicit invocation of that body of law [IHL] suggests a humanitarian nature’ and purpose within the TPNW.¹⁰⁹

C. Humanitarian Provisions

A final illustration of the TPNW’s humanitarian nature concerns the content of the treaty’s operative provisions. According to Docherty, three categories of the TPNW’s provisions are ‘characteristic of past humanitarian disarmament treaties: absolute preventive obligations, remedial measures and cooperative approaches to implementation’.¹¹⁰ While this author agrees with the final two features, the discussion in Parts IV and V below questions the view that preventive obligations, particularly relating to absolute prohibitions and the destruction of stockpiles, are indicative of the TPNW’s humanitarian nature.¹¹¹

For now, however, it is evident that the humanitarian nature of the TPNW is reflected within specific articles that establish positive obligations taking the form of remedial measures requiring States parties to assist victims and address the environmental damage caused by nuclear weapons use and testing.¹¹² Certain remedial measures were incorporated in the APMBC, specifically Article 5 which requires each State party to ‘destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control’.¹¹³ Alongside comparable clearance obligations to the APMBC, CCM goes a step further by imposing a positive obligation relating to victim assistance under Article 5, which requires each State party to ‘adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion’.¹¹⁴ Such provisions clearly seek to address the previous harm caused by anti-personnel mines and cluster munitions, whilst simultaneously aim to minimise any future harm that could be caused by unexploded remnants.

These evidently victim-focused provisions directly inspired the text of Article 6(1) of the TPNW,¹¹⁵ which provides in full, that:

‘Each State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion’.¹¹⁶

This provision emphasises the centrality of humanitarian considerations within the TPNW by requiring parties to take clear steps to address prior harm and suffering caused to victims by both the use and testing of nuclear weapons within their jurisdiction.¹¹⁷ Moreover, drawing from related preambular paragraphs,¹¹⁸ this obligation seeks to address harm caused to specific groups, including women, children and indigenous populations who have been displaced from their cultural lands. This is a particularly significant obligation for the Pacific region where nuclear testing by both the US and France was rife throughout the Cold War in the Marshall Islands and French Polynesia respectively.¹¹⁹

In addition, Article 6(2) expressly requires States parties to ‘take necessary and appropriate measures towards the environmental remediation of areas so contaminated’ by the use or testing of nuclear weapons within areas under its jurisdiction or control.¹²⁰ Though not expressly couched in humanitarian concerns, it is evident that requiring steps to remediate damage caused to the environment serves an important humanitarian purpose in protecting a ‘global commons’ through the imposition of legally-binding positive commitments.¹²¹ Importantly, contrary to the general principle of non-retroactivity of treaty provisions to cover past actions,¹²² the positive obligations under Article 6(1) and (2) cover both past, present and future testing and use of nuclear weapons.¹²³

Although primary responsibility for assistance remediation under Article 6 rests with the affected State in which the testing or use of nuclear weapons occurred¹²⁴ – which in many cases will not be the same State that carried out the nuclear testing activity, and may ultimately not be in a position to adequately fulfil its obligations under Article 6(1) and (2)¹²⁵ – Article 7 establishes a general obligation upon States parties to cooperate when implementing the positive obligations under Article 6. Article 7(3), for example, establishes an obligation on each State party ‘in a position to do so’ to provide technical, material or financial assistance to other TPNW parties affected by nuclear weapon testing.¹²⁶ Although this obligation is somewhat qualified,¹²⁷ Docherty correctly notes that ‘[b]ecause assistance can come in a variety of forms – technical, material and financial – all states should be in a position to help in some way’.¹²⁸

Finally, Article 7(6) recalls that a State party which has ‘used or tested nuclear weapons or any other nuclear explosive devices shall have a responsibility to provide adequate assistance to State Parties, for the purpose of victim assistance and environmental remediation’.¹²⁹ However, should no NWPS join the TPNW, this provision will remain of no immediate effect. Overall, by encouraging cooperative approaches to implementation, Article 7 reflects the shared goodwill on the part of TPNW States parties in meeting their humanitarian-based obligations under Article 6.

A. Negotiation Process

A defining feature of security disarmament instruments is that their negotiation processes are firstly ‘monopolized by states, specifically by military powers’,¹³² and secondly, that the participating States seek to prohibit the weapon in question due to the threat such weapons pose to State security interests.¹³³ Furthermore, the negotiating history and process of traditional disarmament treaties often lack transparency, with the consultations being dominated by military officials and diplomats seeking to advance the agenda of their respective States.¹³⁴ This often leads to time-consuming and lengthy discussions in consensus-based forums such as the Conference on Disarmament, which in turn creates a de facto veto power in the hands of the military powerful States – in this case, present NWPS.¹³⁵

The CWC serves as a useful example. Although humanitarian considerations helped motivate early efforts to prohibit the use of asphyxiating gases and other chemicals in the Geneva Gas Protocol of 1925,¹³⁶ by the 1970s, the utility and benefits of chemical weapons as methods of warfare for the major military powers was no longer as strategically important.¹³⁷ Consequently, the military powers of the time sought to prohibit chemical weapons primarily due to strategic factors, with the aim of limiting the possible proliferation of chemical weapons by further States and prohibiting their use against the major military powers.¹³⁸ Another example of this would be the NPT,¹³⁹ in which the US and the Soviet Union which generally maintained control over the negotiations by exerting influence over their respective blocs within the Eighteen-Nation Disarmament Commission.¹⁴⁰ Indeed, the underlying concern shared by both the US and Soviet Union during the NPT negotiations to limit the spread of nuclear weapons was driven out of a desire to minimise the threat of nuclear weapons being in the hands of numerous, often adversarial States.

With this brief description in mind, it seems difficult to contend that the TPNW reflects traditional security-based disarmament negotiations, particularly given the above discussion in Part III.A.¹⁴¹ Indeed, none of the nine NWPS or their military allies, with the exception of the Netherlands,¹⁴² participated in the 2017 negotiations and their participation in the three Humanitarian Conferences also varied.¹⁴³ Furthermore, as noted previously, the TPNW negotiations took place in an independent conference, thus stepping outside of traditional nuclear disarmament forums such as the NPT Review Process.¹⁴⁴ Finally, and in contrast to the rules of procedure of the Conference on Disarmament and NPT Review Process, the 2017 negotiation conference rules of procedure confirmed that voting on matters of substance would be decided by a two-thirds majority of States present and voting if agreement could not be reached by consensus.¹⁴⁵

Nevertheless, there remains some evidence to suggest that participating States also had security considerations in mind during the Humanitarian Initiative and negotiation conference.

First, as well as seeking to address the humanitarian consequences of nuclear weapons use, the non-aligned NNWS had a concurrent desire to address the slow pace of nuclear disarmament efforts pursuant to Article VI by the NPT-recognised nuclear weapon States (NWS),¹⁴⁶ despite the fact the NNWS have, for the most part, refrained from acquiring nuclear weapons in accordance with Article II of the NPT.¹⁴⁷ Indeed, it has been acknowledged by commentators analysing the humanitarian nature of the TPNW that this growing sense of frustration among the non-aligned NNWS, in conjunction with ‘an influx of advocates from previously successful [humanitarian] weapons-ban campaigns’,¹⁴⁸ helped facilitate the adoption of the TPNW.¹⁴⁹

This rationale is further supported when one considers the comparable subject matter, purpose and preceding context of both the NPT and TPNW. Whilst the NPT was originally negotiated to address the threat posed by horizontal proliferation which would increase the risk of nuclear war,¹⁵⁰ concerns over the increasing likelihood of nuclear exchange have arisen more recently given the development of nuclear weapon capabilities by ‘irresponsible’ States such as the DPRK and Pakistan,¹⁵¹ alongside the escalation of US tensions with Russia, Iran, China and the DPRK. As such, these existing concerns over the deteriorating international security environment in the present day may further indicate that State-based security interests remained of relevance during the TPNW negotiations.

A further example of coinciding security interests can be found in both statements and UNGA resolutions endorsing the Humanitarian Initiative, which repeatedly framed the dangers posed by nuclear weapons and the need for nuclear disarmament in terms of the threats both to States and international peace and security. During the Nayarit Conference in February 2014, for example, Switzerland referred to nuclear weapons as both a ‘threat to international security and humankind’.¹⁵² Austria advanced a comparable two-pronged stance during the 2017 negotiation conference, claiming that a prohibition treaty would mean that ‘every State – including every NWS and every umbrella State – would be more secure and their people would be safer if no State had nuclear weapons’.¹⁵³ These statements arguably indicate that both the Austrian and the Swiss delegations envisaged two types of dangers, which although perhaps closely interconnected, remain distinguishable in affecting both State and human security.

Similarly, during the 2016 Open-Ended Working Group ‘Taking Forward Multilateral Nuclear Disarmament’ that recommended convening the 2017 negotiation conference,¹⁵⁴ Sweden explained the underlying security dimension informing its own interest in pursuing new disarmament measures, stating;

‘One country’s claim to security through nuclear weapons, means another country’s insecurity and is problematic for non-proliferation efforts. Regional security concerns thought to be mitigated through the reliance on nuclear weapons don’t only affect that region negatively but also global security. In my government’s view a sustainable peace cannot be built with nuclear weapons and this makes the work we conduct here more important than ever’.¹⁵⁵

While the Swedish statement also asserted that ‘[t]he humanitarian initiative continues to lay the foundation for our perspective’,¹⁵⁶ each of the aforementioned statements attest to the co-existing nature of the security and humanitarian considerations of participating NNWS which informed their desire to pursue the negotiation of the TPNW.

Another overlooked source which demonstrates the co-existence of State-based security interests amongst the non-aligned NNWS during the lead up to the TPNW negotiations are various UNGA resolutions concerning nuclear disarmament. Many of these resolutions emphasise on the one hand how nuclear disarmament is ‘essential for the prevention of nuclear war and for the strengthening of international peace and security’, while at the same time recognising the ‘most serious threat to the survival of mankind’ posed by nuclear weapons.¹⁵⁷ Others suggest that the use of nuclear weapons would be both a ‘violation of the UN Charter and a crime against humanity’.¹⁵⁸ Although some of these resolutions were issued to support the commencement of negotiations of a proposed Nuclear Weapons Convention,¹⁵⁹ they were still adopted with the support of many of the non-aligned NNWS involved in the Humanitarian Initiative and TPNW negotiations, albeit within some notable absentees,¹⁶⁰ and clearly allude to the dual-interests at stake informing their efforts towards disarmament.

Consequently, it seems that the TPNW negotiation process does indicate that State-based security-driven interests remained of importance amongst the non-aligned NNWS. Although it is perhaps fair to conclude that the existence of security-centred rhetoric took on a somewhat ‘secondary’ role compared to the broader humanitarian considerations underpinning the TPNW negotiation process as outlined previously,¹⁶¹ this does not dispute the fact that such State-centred interests continue to exert some influence on the desire to negotiation the TPNW.

B. Preambular References to Security

Building upon the State-centred security references in the negotiation process of the TPNW, an additional feature of traditional disarmament instruments – specifically epitomised by the BWC and CWC – are explicit references to security framed objectives within their respective preambles. In categorising the CWC, Docherty argues that the Convention’s preamble ‘defines its security objectives in terms of preserving peace’¹⁶² through the explicit recognition of the shared desire of States parties to ‘contribute to the realization of the purposes and principles of the Charter of the United Nations’,¹⁶³ with a determination to ‘act with a view of achieving effective progress towards general and complete disarmament’.¹⁶⁴ Put differently, by referencing the United Nations (UN) Charter, traditional disarmament instruments endorse the Charter’s objectives of ‘maintain[ing] international peace’ by settling breaches of the peace and international disputes by peaceful means,¹⁶⁵ and ‘developing friendly relations among nations’.¹⁶⁶ This has led Docherty to conclude that ‘[w]ith its references to the UN Charter and general and complete disarmament, the preamble of the Chemical Weapons Convention indicates that its purpose is inextricably linked to the concerns of nation states’.¹⁶⁷

Despite clearly reflecting the humanitarian motivations behind the TPNW, its preamble incorporates similar security-orientated references immediately in paragraph 1, which –like the CWC – notes that States parties are ‘determined to contribute to the realization of the purposes and principles of the Charter of the United Nations’.¹⁶⁸ The preamble, however, goes beyond the CWC and recalls that ‘in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State… and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources’.¹⁶⁹ These are clearly State-centred references under Docherty’s own assessment, emphasising the necessity of upholding the objectives of the UN Charter which seeks to promote peace and stability amongst States, coupled with reference to how international peace and security are enhanced through arms regulation.

Moreover, and perhaps most significantly, no comparable references to security-centred considerations or the UN Charter were included within either the APMBC or CCM; the prior two examples of humanitarian disarmament from which inspiration for the TPNW emerged.¹⁷⁰ In this respect, the TPNW’s reaffirmation of security objectives within the preamble marks a clear departure from existing humanitarian disarmament instruments. At the same time, it is certainly plausible to suggest that references to upholding the purposes of the UN Charter can serve a humanitarian objectives too. Indeed, while the Charter’s first, and arguably paramount objective is to ‘maintain international peace and security’, this incidentally brings further humanitarian benefits by reducing the frequency of armed conflict, thereby alleviating the suffering and harm caused by hostilities.

Finally, an explicit reference to State security interests is provided by preambular paragraph 5. Admittedly, this paragraph begins by acknowledging the ‘ethical imperatives for nuclear disarmament and the urgency of achieving and maintaining a nuclear-weapon-free world, which is a global public good’,¹⁷¹ thereby framing the imperative necessity of nuclear disarmament in humanitarian based terms.¹⁷² However, the paragraph subsequently continues by explicitly recognising that maintaining a nuclear-free world would also serve ‘both national and collective security interests’.¹⁷³ Like the various aforementioned statements noted during the TPNW negotiation process, preambular paragraph 5 explicitly notes both the humanitarian and State-centred security benefits that would result from achieving nuclear disarmament.

C. Operative Provisions

Despite the inclusion of humanitarian inspired positive obligations relating to victim assistance and environmental remediation and the cooperative approaches to implementation under Articles 6 and 7 respectively,¹⁷⁴ the TPNW also contains provisions which reflect its security-orientated nature. According to Docherty, there are two primary operative provisions which clearly allude to a disarmament instrument’s State-centred security purpose:

‘[s]ecurity disarmament treaties focus on the elimination of certain weapons of war… They impose absolute bans on activities involving arms, such as use, production, transfer, and stockpiling. Security disarmament treaties also require the destruction of existing stockpiles to decrease the threat of future use’.¹⁷⁵

As such, absolute prohibitions, coupled with stockpile destruction and disarmament provisions are common components of traditional disarmament instruments according to Docherty’s assessment. These features are also incorporated within the TPNW’s operative provisions.

Firstly, like the CWC,¹⁷⁶ Article 1 of the TPNW establishes an absolute ban on nuclear weapons related activities including prohibitions on the use or threat of use,¹⁷⁷ possession, manufacture, development and testing of nuclear weapons.¹⁷⁸ Moreover, the TPNW prohibits both the transfer and receipt of nuclear weapons by States parties,¹⁷⁹ alongside an undertaking never to assist or encourage ‘in any way, anyone to engage in any activity prohibited’ under the treaty.¹⁸⁰ Quite significantly, Article (1)(g) prohibits the stationing of nuclear weapons within the territory, jurisdiction or control of States parties too.¹⁸¹ Given the breadth of these prohibitions, Casey-Maslen has suggested that the TPNW establishes the most comprehensive array of prohibitions of any international disarmament instrument negotiated so far.¹⁸²

Moreover, like both the BWC and CWC,¹⁸³ the TPNW also imposes clear obligations to disarm and destroy existing stockpiles of nuclear weapons. Indeed, Article 4 establishes the primary disarmament obligations applicable to each acceding NWPS, requiring these States to accede to the TPNW and eliminate their respective nuclear weapons through one of two distinct disarmament ‘pathways’.¹⁸⁴ Article 4(1) takes a ‘destroy then join’ approach,¹⁸⁵ allowing NWPS to eliminate their nuclear weapons stockpiles and facilities first before acceding to the TPNW. Alternatively, Article 4(2) provides for a ‘join and destroy’ option, in which an acceding NWPS that ‘owns, possesses or controls nuclear weapons or other nuclear explosive devices shall immediately remove them from operational status, and destroy them as soon as possible but not later than a deadline to be determined by the first meeting of States Parties’.¹⁸⁶ These disarmament pathways are further supplemented by ‘Declaration’ requirements to be provided at the time of accession in accordance with Article 2,¹⁸⁷ and the obligation under Article 4(5) for NWPS to report to the Meeting of States Parties on their progress towards eliminating both nuclear weapons and connected facilities.¹⁸⁸

However, despite conforming to Docherty’s characterisation of traditional disarmament instruments by including absolute prohibitions and stockpile destruction commitments in a similar manner to the CWC, a conceptual issue arises due to the determination that prohibitions and destruction provisions are also common to both the APMBC and CCM too.¹⁸⁹ Indeed, Docherty explicitly notes that ‘[w]hile the Chemical Weapons Convention and the Mine Ban Treaty were conceived of for security and humanitarian purposes, respectively, they share absolute preventive provisions’.¹⁹⁰ Put differently, reference to absolute preventive obligations can be indicative of both a treaty’s humanitarian and security-driven objectives. Consequently, and as will be discussed further in Part V, highlighting absolute prohibitions and disarmament obligations as evidence of a particular treaty’s ‘nature’ for the purposes of categorisation becomes open to overly flexible use. This may in turn undermine both the credibility and utility of the characterising ‘checklist’ employed by Docherty, McCarthy and Rietiker, among others, to categorise different disarmament instruments.¹⁹¹

A final illustration of how the TPNW’s provisions indicate the co-existence of security-based considerations can be unearthed within the Article 17 withdrawal clause. The TPNW takes an innovative approach to withdrawal in comparison to existing nuclear arms control, non-proliferation and disarmament treaties, reflecting a balance between State-centred and humanitarian considerations.¹⁹² On the one hand, if, after the 12-month notice period has expired, ‘the withdrawing State Party is a party to an armed conflict, the State Party shall continue to be bound by the obligations of this Treaty and of any additional protocols until it is no longer party to an armed conflict’.¹⁹³ This clause is inspired by Article 20(3) of both the APMBC and the CCM,¹⁹⁴ and has the aim of preventing a TPNW party from announcing its withdrawal with the intention of using nuclear weapons in an armed conflict as soon as the 12-month notice period is satisfied.¹⁹⁵ This evidently serves a humanitarian purpose – at least to some extent – by delaying the potential use of nuclear weapons (thus avoiding human suffering and harm) precisely when they are most likely to be used – during an armed conflict.¹⁹⁶ Indeed, as Nystuen, Egeland and Graff Hugo note:

‘Central to the TPNW is the prohibition of use of nuclear weapons, due to its catastrophic humanitarian impact and incompatibility with international humanitarian law (IHL). It is argued that involvement in armed conflict raises the risk of a nuclear weapons use, and excluding withdrawal from the TPNW in such a situation therefore makes good sense’.¹⁹⁷

On the other hand, these further requirements are preceded by Article 17(2) which contains what is commonly referred to as the ‘extraordinary events’ withdrawal clause. This clause was first included within the Partial Nuclear Test-Ban Treaty in 1963¹⁹⁸ and has been subsequently adopted in other ‘traditional’ disarmament instruments including Article X(1) of the NPT and Article XVI(2) of the CWC.¹⁹⁹ However, the ‘extraordinary events’ clause has been heavily criticised for establishing a purely subjective test, in which ‘the ultimate authority to determine whether there exists “extraordinary events” that would justify the withdrawal of a party from the NPT lies with the withdrawing party itself’.²⁰⁰ The subjective nature of the clause becomes apparent given the inclusion of phrases such as ‘if it [ie the withdrawing State] decides’ whether a particular extraordinary event related to the subject matter of the treaty has jeopardised ‘its’ subjectively determined supreme interests.

The extraordinary events clause in Article 17(2) is prone to these same weaknesses, but these are fortunately mitigated to some extent by the inclusion of the additional requirements of paragraph 3 noted above. However, most significantly for present purposes at least, are two points; first, neither the APMBC or CCM include an ‘extraordinary events’ clause within their respective withdrawal provisions; and second, the inclusion of the ‘extraordinary events’ clause arguably prioritises State-orientated subjectively determined ‘supreme interests’ – many of which will relate to self-defence and continuing survival – over collective humanitarian considerations. This has similarly been discussed by ICAN Director Beatrice Fihn who argues that the language of supreme interests in Article 17(2) ‘feeds the narrative that there are certain interests, there are certain reasons to have nuclear weapons which is just counter to the whole beginning of the treaty that bans them under any circumstances’.²⁰¹ Indeed, Ritchie argued during the final stages of the negotiations that:

‘[i]t is arguably incongruous to base a prohibition on the unacceptable consequences of nuclear violence whilst ostensibly enabling states to pursue nuclear weapons capability after the current three months notice, or even twelve months as the negotiators are now suggesting. The very logic of the nuclear ban treaty delegitimises the sovereign prerogative to understand security in terms of nuclear weapons’.²⁰²

As such, the inclusion of the extraordinary events clause arguably runs counter to the TPNW’s central premise that nuclear weapons are considered illegitimate, unacceptable weapons with devastating humanitarian consequences.²⁰³ Consequently, retaining the language of supreme interests as commonly included in traditional disarmament instruments such as the NPT and CWC ultimately reflects the security-driven interests of certain, though admittedly a small minority,²⁰⁴ of TPNW negotiating States which sought to retain a right to withdraw and prioritise individualistic considerations over human-centred objectives.

A. Rethinking the Identifying Elements of Disarmament Instruments

An initial observation concerns the characterising elements used by commentators to categorise disarmament instruments. Despite adopting what can essentially be described as a ‘checklists’ approach – establishing an initial point of reference when determining the nature of a particular disarmament instrument²⁰⁵ – current analyses of the TPNW fail to accurately apply such characteristics when seeking to ‘categorise’ the treaty. Some commentators have consciously chosen not to discuss specific aspects of the TPNW preamble which demonstrate its security-driven nature.²⁰⁶ Docherty, by contrast, seemingly acknowledges the existence of certain security references within the TPNW preamble, but seems to dismiss their significance as being

‘unsurprising given that for decades before the TPNW was adopted, states viewed nuclear weapons through a security lens. They do not dilute the treaty’s humanitarian purpose, which is made clear by the quantity, placement and strength of relevant preambular paragraphs’.²⁰⁷

However, this conclusion neglects the fact that a security-based reference emphasising the importance of upholding the purposes of the UN Charter is situated immediately in the second preambular paragraph,²⁰⁸ before any mentioning of victims, IHL principles and environmental harm, and the disproportionate effects of nuclear weapons on women, girls and indigenous populations.²⁰⁹ Rather than a remnant of previous disarmament negotiations, the explicit inclusion of security references arguably indicates a prominent – as opposed to incidental – role of State-driven security-interests as reflected immediately in the preamble.

Furthermore, certain checklist ‘elements’ have been invoked as evidence to highlight both the security or humanitarian nature of a particular treaty. In other words, a single particular feature ‘X’ can, and has, been used as evidence to support both conclusion ‘Y’ and ‘Z’, thereby creating a situation of ‘double-counting’ of sorts. This ‘double-counting’ arises in connection to preventive obligations of the TPNW, taking the form of absolute prohibitions under Article 1 and disarmament obligations under Article 4.²¹⁰ Yet despite acknowledging that preventive obligations are commonly incorporated into the text of both ‘traditional’ and ‘humanitarian’ disarmament treaties,²¹¹ Docherty claims that the comprehensiveness of the TPNW’s absolute prohibitions serves to ‘advance the treaty’s humanitarian goal by working to prevent future harm’.²¹²

To some extent, Docherty’s assessment is seemingly justified by recalling the broader context of the instrument in question,²¹³ particularly in this case the IHL references in the TPNW preamble and positive obligations concerning Victim Assistance and International Cooperation in Articles 6 and 7.²¹⁴ However, her assessment fails to consider the entire TPNW context. Indeed, when one recalls the presence of various security-orientated references and characteristics present in the TPNW, such as the need to uphold the purposes of the UN Charter within the preamble – references noticeably absent in the APMBC and CCM²¹⁵ – alongside the subjective ‘extraordinary events’ clause of Article 17(2),²¹⁶ it can equally be argued that the preventive obligations under Articles 1 and 4 reinforce the underlying security-based interests of States participating in the TPNW’s broader process and negotiation.

As a result, referencing the absolute prohibitions and disarmament obligations under Articles 1 and 4 respectively as evidence of the TPNW’s humanitarian purpose loses some of its persuasive value when one can equally demonstrate that preventive obligations can similarly advance the security interests of States, as Docherty herself concedes.²¹⁷ This may subsequently suggest that at least some – though admittedly not all – of the identifying characteristics noted by Docherty and McCarthy are somewhat too flexible to effectively use as a ‘checklist’ in order to accurately determine a treaty’s underlying ‘nature’ and motivations. One implication, therefore, is that these identifying characteristics may require revision to address the malleable manner in which the ‘checklists’ used can be applied in practice. Alternatively, it may be that a more conservative approach is needed, whereby only specific characteristics of a treaty which can solely indicate either its security or humanitarian nature should be cited as evidence of the treaty’s predominant nature, thereby excluding the possibility of double-counting. This article is not the place to recommend such changes, but the present malleability of the identifying ‘checklist’ use by commentators must nonetheless be addressed if our assessment of the nature of a specific disarmament instruments in the future is to be credible.

B. The Value of Categorisation?

A further implication stemming from the discussion above, is that the general acceptance of the TPNW as an illustration of humanitarian disarmament may need to be reconsidered in light of the clear presence of security-centred references within the TPNW at various points. In contrast to McCarthy who identifies a dualistic distinction between traditional and humanitarian disarmament, Docherty endorses the existence of a middle-ground category disarmament instruments aptly named ‘hybrid’ disarmament.²¹⁸ Taking the Convention on Conventional Weapons (CCW) of 1980 and its associated protocols as an example,²¹⁹ Docherty argues that the underlying purpose of hybrid disarmament

‘combines concerns for protecting security and minimizing suffering of individuals. As a result, they [hybrid disarmament instruments] represent a blend of elements characteristic of security disarmament and humanitarian disarmament, while moving increasingly towards the latter’.²²⁰

In light of the conclusions reached in Part IV, is it more accurate to categorise the TPNW as a ‘hybrid’ disarmament instrument? The TPNW certainly shares various characteristics with the CCW, particularly comparable preambular paragraphs which Not needed identify State security concerns by emphasising the need to uphold the principle and purposes of the UN Charter.²²¹ And as noted, the TPNW simultaneously pays recognition to human-centred considerations through reference to specific principles of IHL and the need to protect civilians as a means of showing a balance between security and human-centred objectives.²²²

At the same time, the greater frequency and explicit nature of the human and victim-focused provisions in Article 6 in particular, alongside detailed preambular references to IHL principles suggests that the TPNW is clearly distinct from ‘hybrid’ disarmament approaches such as the CCW, which frames its human-centred motives in a much vaguer fashion. Consequently, the TPNW’s provisions do not demonstrate a progressive shift in the direction of humanitarian disarmament;²²³ instead, the TPNW is predominantly human and victim-orientated in nature, coupled with a coinciding, though perhaps less influential State-centred security dimension. This contrasts with the CCW, where Docherty notes that ‘[h]umanitarian concerns led to the convening of the conference [to adopt the CCW], but security interests determined its outcome’.²²⁴ As such, seeking to categorise the TPNW not as a humanitarian instrument but rather a further example of hybrid disarmament seems somewhat forced and inaccurate.

However, both the malleability of identifying checklists,²²⁵ and the alternative, albeit inaccurate attempt to categorise the TPNW as a ‘hybrid’ disarmament instrument ultimately gives rise to more demanding questions as to precisely what advantages are brought by categorising complex disarmament instruments into neatly separated groupings such as ‘traditional’, ‘hybrid’, or ‘humanitarian’ disarmament. What benefit does describing, or trying to place a treaty – which has been negotiated and developed by taking into account the views, interests and desires of a multitude of States and actors – actually bring? There are, of course, certain advantages, if implemented correctly. Categorisation can help identify trends, or periods in which certain interests dominated multilateral disarmament discourse.²²⁶ From a historical perspective, these trends can help describe the evolution of disarmament over longer periods of time and can be informative of times of change and the prevalence of certain underlying interests.

At the same time, attempts to try and ‘force’ the categorisation of the TPNW should not come at the expense of reflecting the reality on the ground. The manipulation of identifying ‘checklist’ factors discussed previously, either knowingly or unwillingly, ultimately creates a misrepresentation of the TPNW, simply in order to describe or argue that the treaty conforms to an abstractly identified category of disarmament instruments; ‘humanitarian disarmament’. By contrast, the underlying purpose of this discussion has been to provide an accurate reflection of the underlying motivations behind the TPNW. It seeks to delve beyond the human-centre narrative that has dominated discourse by instead acknowledging and highlighting the complex array of interests at stake during the negotiations. This may not paint the perfect picture of the TPNW that humanitarian disarmament proponents desire. But the conclusions reached goes beyond mere issues of semantics and may have tangible implications in our assessment of the provisions of the TPNW.

Using just one example, the conclusions reached here may affect our interpretation of certain aspects of the treaty.²²⁷ As is well known, Articles 31 and 32 of the Vienna Convention of the Law of Treaties establishes general rules on treaty interpretation under international law.²²⁸ Under Article 31(1), a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.²²⁹ One must consider both the subsequent agreement between parties and practice of States regarding the interpretation of provisions,²³⁰ while recourse may also be given to the travaux préparatoires of the treaty ‘in order to confirm the meaning resulting from the application of article 31’, or to determine the meaning if the interpretation under Article 31 leads to an obscure or manifestly unreasonable result.²³¹

Although the International Law Commission generally favoured an approach which prioritised the ordinary meaning of the text which ‘must be presumed to be the authentic expression of the intention of the parties’,²³² Articles 31 and 32 draw upon each of the traditional schools of interpretation;²³³ the textual approach, which presumes the ‘intentions of the parties are reflected in the text of the treaty’; the intent approach, which seeks to determine the intention of the parties adopting the treaty to resolve ambiguity; and the teleological school, which aims to ascertain the object and purpose of a treaty and interpret the provisions in light of this.²³⁴ As such, the intentions of the parties constitutes an important consideration in the process of interpretation, whether this is assumed from the actual text of an instrument, or assessing subjective intentions from the travaux préparatoires to provide additional guidance in the absence of clarity.

Considering this understanding of treaty interpretation, there is substantial practical value in, and indeed a genuine need to acknowledge both the co-existing security-driven and humanitarian inspired aspects of the TPNW in order to accurately account for the intentions and underlying motivations of the negotiating parties to the 2017 conference. In fact, even when one takes the text of the treaty to constitute an expression of the negotiating parties,²³⁵ failure to consider the significance of the security-based references within the TPNW text ignores the intentions of negotiating States too. Ultimately, the failure to acknowledge the coinciding existence of security interests alongside genuine human-centred concerns could potentially result in misleading assessments and interpretations of the TPNW and may even present a false account of the underlying object and purpose of the treaty as well.

C. Describing Reality: The Advantage of Recognising Security Interests

Finally, while security-based objectives and humanity considerations are often considered competing objectives balanced against each other, there seems to be no obvious reason why both altruistic humanitarian concerns and State-based security interests cannot co-exist in order to address the threat to international peace and security presented by nuclear war. In fact, these two approaches to disarmament, though somewhat distinct with independent purposes, require similar action in the same direction and may therefore be mutually reinforcing to an extent.²³⁶ Borrie has previously made a similar point in 2005 when discussing the added value of humanitarian perspectives for arms control and disarmament efforts, arguing that:

‘This “national security” reference point remains relevant and important. Nor is it likely to be eclipsed while the nation state remains the basic unit of international order. But new and complex challenges of security this century… increasingly call for supplementary perspectives in order for them to be addressed effectively. Humanitarian perspectives and concepts can constitute certain of these supplements. They do not need to be viewed as exclusive alternatives to national security approaches in order to assist negotiating practitioners and can help build common ground in responding to collective challenges in security’.²³⁷

Furthermore, given the predominant influence of State-based security considerations in prior nuclear non-proliferation and disarmament negotiations,²³⁸ including the NPT,²³⁹ it is arguably disingenuous to suggest that these existing interests were simply cast aside altogether by the non-aligned NNWS during the TPNW negotiations in favour of an exclusively humanitarian approach. In connection with the TPNW, Borrie, Spies and Wan have noted that simply;

‘because states and other actors aligned themselves with ICAN, it does not necessarily follow that they wholeheartedly accepted the value or principle-driven approach it promoted in support of a nuclear prohibition. Sometimes morals suit self-interest, and the normative pressure states supporting the TPNW hope will gather over time will presumably suit their national interests if it results in nuclear disarmament’.²⁴⁰

Put differently, while the human-centred approach advanced by ICAN offered a novel means of overcoming the stagnation in nuclear disarmament efforts which appealed to like-minded NNWS, this does not necessarily mean that this human-centred approach totally replaced underlying State-based interests in upholding security. Though Borrie, Spies and Wan certainly do not aim to discount the importance of the Humanitarian Initiative, they suggest that scholarly accounts which allude to a ‘purely’ humanitarian-interest rhetoric behind the TPNW process is ‘a little too neat and generalized’.²⁴¹ Instead, the TPNW demonstrates these co-existing interests operating in tandem, using the humanitarian reframing as a means of advancing co-existing State-based security interests. Equally, this does not contradict the fact that the TPNW process constituted a ‘genuine’ humanitarian venture by the non-aligned NNWS.²⁴²

Furthermore, acknowledging the coinciding and mutually beneficial influence of security-driven and humanitarian considerations may increase the TPNW’s potential impact on the NWPS. It is worth noting that a primary criticism raised against the TPNW by opponents relates to the idealistic and morally-driven nature of the treaty that ‘disregards the realities of the international security environment’.²⁴³ This has led former US President Donald Trump to dismiss the TPNW and Humanitarian Initiative as magical thinking in January 2018,²⁴⁴ while other commentators oppose the treaty as unrealistic and misguided in facilitating disarmament efforts.²⁴⁵ As such, the TPNW arguably reflects an existing and growing divide between the non-aligned NNWS supporters of the treaty who seek progress on disarmament, and the fierce, reality-based perspective of the NWPS which oppose the solely humanitarian, moral arguments behind the TPNW. Continuing to solely emphasise the humanitarian inspirations of the TPNW whilst casting aside concurrently existing security concerns does nothing to bridge this growing divide.

However, by acknowledging the security driven concerns behind the TPNW, including the escalation of tensions between nuclear powers and the increased risk of nuclear war, TPNW supporters can provide a case for the necessity of the treaty on both security and humanitarian grounds. Rather than being condemned as idealistic, as opponents so frequently claim, acknowledging the influence of security-orientated objectives can ground the TPNW firmly in reality. By recognising these coinciding interests, TPNW proponents may be able to bridge-build between supporters and opponents, demonstrating how the motivations behind the adoption of the treaty are not based entirely on altruistic and moral arguments, but were equally driven by security-driven concerns which the NWPS can relate to. This embracing of the presence of security-concerns would not constitute a defeat for humanitarian disarmament; on the contrary, it offers a new perspective upon which the humanitarian-inspired motivations of both civil society and States can be achieved in tandem with security goals.