Nuclear Using International Law and Treaties to Prevent Nuclear Weapons Use and Proliferation

Rebecca E. Johnson is the director of the Acronym Institute for Disarmament Diplomacy. This article is a product of a Perry World House workshop on “The Future of Nuclear Weapons, Statecraft, and Deterrence after Ukraine”, which took place on April 4, 2023. This workshop was made possible in part by a grant from Carnegie Corporation of New York.

Russian President Vladimir Putin launched his brutal invasion of Ukraine almost eighteen months ago, on February 24, 2022. Three days later, he announced that he was putting Russia’s nuclear forces on “prompt alert.” Of almost 6,000 nuclear weapons in the Russian arsenal, around 900 are estimated to be on versions of ”prompt,” ”special,” and “hair trigger” alert. The North Atlantic Treaty Organization (NATO) has approximately the same numbers at its disposal, comprising US strategic nuclear forces and at least one British and one French nuclear-armed submarine deployed at sea, with their payloads able to be launched on warning by officers in situ.

The war in Ukraine, which may be shaping up to be a “forever war,” raises fundamental questions about the salience, valuations, risks, and dangers attached to nuclear weapons in the twenty-first century. For the first time since the end of the Cold War, we face the real possibility that a nuclear-armed leader could launch nuclear weapons in war. This paper considers what role international disarmament and nonproliferation treaties can play in preventing nuclear war being launched by intent, mistake, miscalculation, or a global version of “murder-suicide,” a phenomenon associated with terrorism and, notably, domestic violence by men who kill their families before despatching themselves.

Russian journalist and Nobel laureate Dmitry Muratov, publisher of independent paper Novaya Gazeta (which was closed down by Putin), spoke to the BBC on 29 March: “Will Putin press the nuclear button, or won't he? Who knows? No one knows this. There isn't a single person who can say for sure.” Muratov added: “We see how state propaganda is preparing people to think that nuclear war isn't a bad thing…On TV channels here, nuclear war and nuclear weapons are promoted…'We've got this missile, that missile, another kind of missile.' They talk about targeting Britain and France; about sparking a nuclear tsunami that washes away America. Why do they say this? So that people here are ready.”

At the end of March 2023, Putin escalated the nuclear threats and risks by announcing that Russia would station “tactical nuclear weapons” in Belarus, a non-nuclear state party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Putin and Belarus’ President Alexander Lukashenko rejected concerns that such deployments undermined the NPT, presenting their “nuclear sharing” plans as no different from NATO’s policies.

In the wake of Putin’s invasion there are countervailing pressures that could either lead toward further proliferation or give greater impetus to implementing the 2021 Treaty on the Prohibition of Nuclear Weapons (TPNW) and progressively eliminating all nuclear arsenals.

Putin’s invasion of Ukraine and nuclear threats pushed Finland and Sweden into rushing through applications to join NATO.  This ‘unintended consequence’ of Putin’s behavior and miscalculations quickly bypassed long-standing civil society opposition to joining the nuclear-armed NATO alliance. Finland’s accession has already been finalized, but Turkey’s objections over Stockholm’s human rights policies and protections for Kurdish residents, have slowed the process for Sweden to join.  Nonetheless, it is recognized that these two Scandinavian states will strengthen NATO’s conventional military capabilities and resources.  Less certain is the impact on NATO nuclear policies.  Between Russia’s nuclear-backed aggression and the addition of Finland and Sweden to NATO policymaking, will Europe’s reliance on nuclear weapons be increased? Or, alternatively, will the leverage of nuclear skeptics across Europe and North America be strengthened with the development and use of more effective tools for deterring military aggression and building non-nuclear regional security? Either way, the role of nuclear weapons in North Atlantic security policies needs to be urgently examined and reconsidered.

Central to the humanitarian approach that led to the TPNW was the recognition that nuclear deterrence doctrines are a fundamental obstacle to nuclear disarmament. Unprovable and inconsistent, the variously constructed theories, narratives, and practices connected with nuclear deterrence doctrines serve mainly to justify nuclear possession and all the high-risk activities that lead to nuclear proliferation and use. The TPNW does not preclude any nation joining security alliances that include nuclear-armed states, though it is necessary for acceding states to remove any nuclear weapons from their territory and withdraw from active engagement in nuclear-weapon facilitating and promoting activities. Non-nuclear deterrence approaches and communications have played important roles in war prevention, defense, and cooperative security arrangements for most states since the nuclear age was kicked off in 1945. When nuclear weapons are part of the equation, however, it appears that nuclear-armed states weaken their non-nuclear deterrence tools.

Nuclear weapons capabilities embed the use of nuclear weapons in nuclear deterrence policies and signaling. Nuclear deterrence belief systems underpin nuclear proliferation incentives, even if personal and political power and military force projection are more salient for most, if not all, nuclear-armed leaders. For the politicians, especially in declining states, nuclear possession has always been about status and “freedom of action.”

The fact that Putin felt the need to make more explicit nuclear threats as his invasion got increasingly bogged down underscored the risks of failed nuclear deterrence threats. The existence of nuclear weapons surrounding Ukraine failed to deter the invasion or prevent resistance by the invaded nation. Putin’s threats failed to stop other countries supporting Ukraine, including through military and other kinds of assistance.

As with then-UK Prime Minister Tony Blair’s ill-judged decision to back then-US President George W. Bush in the invasion of Iraq, possessing nuclear weapons was a major factor in Putin’s decision to invade Ukraine. The terrible war that has followed the Russian president’s miscalculations demonstrates the “increasingly hazardous” risks and problems of relying on nuclear weapons for deterrence.

Using Nuclear Treaties and Institutions to Strengthen Norms and Prevent Nuclear Use

The 1968 NPT was made possible by the shock of the 1962 Cuban Missile Crisis. Its text was bare bones, but it was the best that could be achieved in the geostrategic conditions of US-Soviet Cold War rivalry and arms racing. It has taken many years for the NPT to sign up most – but still not all – of the United Nations’ member states, and some signatories have used Article IV’s “inalienable right” to nuclear technologies for “peaceful purposes” to develop sophisticated nuclear capabilities just short of weaponization.

Over the past fifty years, the nonproliferation regime’s capabilities have been augmented through agreements and review process meetings, which served to put further legal and institutional flesh on the NPT’s bones with additional safeguards, objectives and rules. These include the UN Security Council resolutions 984 (1995), 1325 (2000), and 1540 (2004) and other nuclear safety and security measures.

The TPNW was negotiated in 2017 to fill gaps in the NPT regime and provide legal obligations to prevent the use of nuclear weapons and accelerate nuclear disarmament. Treaty negotiations incorporated experiences and lessons drawn from the NPT and other international treaties, such as the Comprehensive Nuclear-Test-Ban Treaty (CTBT), Chemical Weapons Treaty, and humanitarian disarmament agreements that restrict, control, or ban other kinds of inhumane weapons. Framed with collective responsibilities for preventing nuclear use and war central to its prohibitions, objectives, and provisions, the TPNW’s requirements and responsibilities apply to individuals and companies as well as states and governments.

The fundamental prohibitions and objectives were made as clear and comprehensive as could be negotiated, with positive obligations to prevent further humanitarian harm, assist victims, and remediate nuclear-affected environments. Obligations to eliminate nuclear weapons enshrined core principles, while recognizing that mechanisms would need to be future-proofed. This meant enabling the institutional, implementation, and monitoring requirements to adapt to changing political and technological developments. Taking into account real world challenges, the negotiators focused on achieving the possible: strengthening norms against nuclear weapons and their use; growing capacities to enhance the nonproliferation and disarmament regimes; and drawing nuclear-armed governments into taking concrete steps that would move them toward eliminating their nuclear arsenals and dependencies. One of the TPNW’s major strengths is its adaptive approach, enabling institutional and verification capabilities to grow as political and technological circumstances change.

The TPNW’s first Meeting of States Parties after entering into international legal force and the COVID-delayed Tenth NPT Review Conference both took place in 2022, in the ominous shadows of the Ukraine war. They had markedly different diplomatic outcomes, however.

The devastating impacts of the war galvanized the TPNW Meeting of States Parties in June to achieve the strongest possible Declaration and Action Plan, with fifty forward-looking actions described as a “framework to guide the implementation of the Treaty and set in motion processes to develop further areas of cooperation and implementation” across all the TPNW obligations and provisions. The Declaration was also a call to action, recognizing: “Far from preserving peace and security, nuclear weapons are used as instruments of policy, linked to coercion, intimidation and heightening of tensions.” It affirmed the importance of fully implementing the TPNW and further delegitimizing and building a robust global norm against nuclear weapons, stating: “We condemn unequivocally any and all nuclear threats, whether they be explicit or implicit and irrespective of the circumstances.”

By contrast, the NPT Review Conference in August 2022 was marred by deep divisions, principally among the NPT5 nuclear-armed states. Russia walked out on the last evening of the conference after failing in its efforts to delete several paragraphs of the substantive draft final document. While some nuclear-armed states joined Russia in deleting practically all references to the substantive outcomes of the TPNW’s Vienna Meeting of States Parties, these governments joined many more NPT states in backing several paragraphs that referred to nuclear safety concerns at Ukraine’s Zaporizhzhia nuclear power plant arising from Russia’s invasion and occupation. During the conference, many states had criticized Putin and Donald Trump for killing off the 1987 Intermediate-Range Nuclear Forces (INF) Treaty, which had removed and eliminate the most destabilizing class of land-based nuclear launchers (such as SS20s, Pershing, and cruise missiles) from Europe. Many also urged Moscow to join Washington in negotiating further START agreements.

Though Moscow had received some issue-based support from China and a few non-nuclear nations (notably, Sino-Russian criticism of NATO’s nuclear sharing policies), the Kremlin’s NPT delegation looked isolated and weak as Russia – for the first time in NPT memory – was left on its own in Moscow’s decision block consensus on the much-compromised final document.  In standing up to Russia over Zaporizhzhia, the international community underscored the importance of the NPT and International Atomic Energy Agency to nuclear safety as well as nonproliferation.

The Russia-Belarus decision must be understood in context. This worrying escalation is meant as a challenge to NATO but will inevitably impact the NPT regime as well. Since the 1990s, Russia has raised concerns in NPT meetings that NATO’s deployment of US B61 free fall gravity bombs in Germany, Italy, Turkey, Belgium, and the Netherlands constitutes a violation of the NPT and should be ended. During the 2022 NPT Review Conference, a number of nuclear-free governments also reiterated longstanding objections to NATO’s nuclear sharing doctrine, which they consider violates and undermines the NPT. The Chinese delegation pushed strongly back on any criticisms of China’s military-nuclear ambitions, while issuing their own condemnation of nuclear sharing and the AUKUS (Australia, United Kingdom, and United States) plans to build and equip a new generation of nuclear-powered submarines for deployment in the Indo-Pacific region.

The NPT Conference reiterated long-standing calls for a zone free of nuclear and other weapons of mass destruction in the Middle East, and urged Israel, India, Pakistan, and North Korea to join the CTBT and NPT. North Korea’s dangerous and destabilising nuclear and missile tests activities were criticized heavily, and there were many calls for talks on the 2015 Joint Comprehensive Plan of Action (JCPOA) relating to Iran’s nuclear program to be fully resumed following the replacement of Donald Trump (who trashed the JCPOA) by Joe Biden as US President.

Some nuclear-free countries raised concerns about the British government’s decisions to raise previous caps on the UK nuclear arsenal, and also ditch long-standing NPT commitments to transparency. Though NPT5 rivalries as well as their joint efforts to cut TPNW references succeeded in the febrile conditions that undermined the NPT’s final outcome, they could not prevent 147 NPT parties from signing a strong Joint Humanitarian Statement led by Costa Rica on behalf of TPNW-supporting states. This statement reinforced normative and legal actions to prevent nuclear use by asserting: “It is in the interests of the very survival of humanity that nuclear weapons are never used again, under any circumstances.”

Reducing nuclear risks to prevent nuclear use

Treaties, like domestic laws, require constant vigilance, resources for compliance, and collective implementation. Legal and diplomatic actions have their limits, especially when dealing with denialist nihilists, but the right laws and policies can go a long way toward stopping the worst from happening. They have normative power and need to be integrated with practical, diplomatic, legal, and institutional steps that can contribute to deterring dangerous behavior and building public and international confidence. As noted above, existing treaties, including the NPT, CTBT, and TPNW, can be effective tools for preventing proliferation and use. They can help everyone, from all sides, to navigate toward safer new systems and ways to build and sustain cooperative security.

It is worth highlighting one particular example of practical risk reduction steps that need to be taken seriously. At the 2018 NPT PrepCom in Geneva, the International Committee of the Red Cross (ICRC)—a prime mover in the campaign for the TPNW—put forward several concrete proposals to “reduce the risks, advance nuclear disarmament and implement long-standing risk reduction commitments as a matter of urgency”:

• Removal of nuclear weapons from “hair trigger” alert status;
• Pre-notification of military exercises that may involve nuclear weapons and of the launch of missiles;
• Reestablishment of joint early-warning centers to clarify in real time unexpected and potentially destabilising events;
• Steps to progressively reduce the role of nuclear weapons in security policies; and
• Unequivocal commitments never to use nuclear weapons first.

Despite the failure of the 2022 NPT RevCon to adopt substantive recommendations, these ICRC proposals offer sensible ways forward, especially for nuclear-armed states and their allies. Very relevant in times of war, they have been calibrated to work alongside most, if not all, deterrence policies without reinforcing the myths and dangers associated with those doctrines. They are consistent with international humanitarian law, the NPT, CTBT and TPNW.

These are some of the ways that international laws, prohibitions, norms, and taboos can be important factors in creating the processes, conditions, and courage to stop nuclear weapons being launched by psychopathologic, narcissistic leaders or any military personnel that have access to nuclear keys and codes.

Reflections

Putin’s miscalculations and subsequent behavior, if nothing else, have exposed the dangerously risky ideological belief systems inherent in nuclear deterrence theories. Psychological and military miscalculations, irrational and arrogant leaders, fearful subordinates, human and technical mistakes, and miscommunications­—these are not just the stuff of movie plots and nightmares. They are real world risks that have already brought the world to the brink of nuclear war.

The International Criminal Court sent powerful signals by indicting Putin for crimes against humanity. This was undoubtedly warranted, given the atrocities he has ordered or condoned.  But when vain men like Putin feel cornered they may choose death rather than humiliation.  As domestic violence psychologists know, some men don’t want to leave people behind who will remember them in negative ways after they die.  In that case, suicide-murder may be their preferred option, killing family members, including children they love, as well as themselves.  American and Russian presidents and the political and military systems they presided over used to be held up as ‘safe hands’ for nuclear weapons (in contrast to, say, Kim Jong-un).  After Trump and Putin, can anyone believe this now?  And if we can’t trust the leaders with nuclear weapons, who can we trust?  Here we are in 2023, hoping that there are some brave, sensible human beings who can act as failsafe blockers if a mad leader orders nuclear strikes because he’s too far gone to accept defeat.  As Chatham House has analysed, that may have saved us in the past.  But luck is not a strategy for security.

In November 2022, G20 leaders meeting in Indonesia stated: “The use, or threat of the use, of nuclear weapons is inadmissible.” This statement confirms the prohibitions against using and threatening to use nuclear weapons that have long been recognised and were made explicit in the TPNW.  While the nine nuclear-armed states are currently holding out against signing the TPNW, the five largest (Russia, United States, China, France and UK) are parties to the NPT, a responsibility that UN Under-Secretary-General Nakamitsu underscored when she told the UN Security Council on 31 March this year: “All States must avoid taking any actions that could lead to escalation, mistake or miscalculation.”

The practical actions that are taken to implement legal prohibitions, penalties, and verification regimes, increase our collective legal and political capabilities to take warmongers and nuclear weapons out of circulation altogether. Entry into force of the TPNW has embedded legal developments since the July 1996 ICJ Advisory Opinion.  Taken together, these go a long way toward establishing that using nuclear weapons (and inter alia threatening to use nuclear weapons) is widely recognized as constituting crimes against humanity and war crimes.

Nonetheless, there can be no long-term global security unless we tackle the root causes, including the rapacious military-industrial practices that drive wars, nuclear proliferation, terrorism, and human misery around the world. Powerful military, industrial, bureaucratic, academic, and political establishments (MIBAP) in the nuclear-armed states and their allies play disproportionate roles in justifying the destabilizing activities and profiteering of a small number of institutions and countries.

In today’s world, concealing the real facts and evidence relating to the world’s serious problems is a multibillion dollar strategy by major nuclear and fossil fuel dependent governments to avoid implementing agreed cuts and risk reduction measures aimed at curbing greenhouse gas emissions and preventing nuclear use. As concerns grow over the security implications of emerging artificial intelligence (AI) technologies, cyber warfare already uses targeted attacks to create chaos and disrupt vital communications and infrastructure. Chaos tools are designed to destabilize and disrupt, which inevitably adds to nuclear and humanitarian risks and dangers. State-controlled and privately funded media in many countries deploy PR tools to proliferate false information as “alternative facts” that undermine democratic decision-making processes.

Facing the extinction-level threats of nuclear war and climate destruction, the world is witnessing a renewal of civil society activism not seen since the 1980s when women, young people, atomic bomb survivors, and indigenous communities affected by nuclear programs and weapons testing joined together against East-West arms racing and a new generation of nuclear weapons designed to fight in the “European theater.” By 1987, these medium-range nuclear missiles were being eliminated under the INF Treaty. Across the world in even greater numbers now, we are seeing young women and indigenous people leading grassroots movements to abolish nuclear weapons and halt climate chaos. On the streets as well as in national and multilateral meetings, movements for life on Earth are coalescing, spreading, and growing louder.

Inspired whenever we see international laws and treaties working on the side of human and environmental security, many more governments and activists than before are active in UN multilateralism. We are determined not to let urgent international security decisions and measures become blocked and sidelined due to the nuclear-complicit, P5, and MIBAP establishments that support the current, unsustainable status quo.

The statements made and views expressed in this article are solely the responsibility of the author.