In January last year, for the first time, a global treaty came into force outlawing the bomb – the most significant multilateral development in nuclear arms control since the Non-Proliferation Treaty’s (NPT) entry into force in 1970. A year later, Routledge published an edited book on the Ban Treaty. Setsuko Thurlow, a survivor of the Hiroshima bombing in 1945, celebrated the adoption of Ban Treaty at the UN in 2017 by noting that nuclear weapons, always “immoral,” were now “also illegal.” While that claim may need qualification, there is no doubt that the Treaty on the Prohibition of Nuclear Weapons (TPNW or Ban Treaty) establishes a new normative settling point on the ethics, legality and legitimacy of the bomb.

The book’s chapters are written by many familiar people from the worlds of academe, think tanks, foreign ministries, and civil society.

A number of recurrent themes run through the thirty-two chapters. Not one author questions that the NPT has been a critical pillar of the international security architecture for half a century. There would be seriously damaging consequences were it to collapse. That said, doubts gradually increased as to whether the NPT may have exhausted its normative potential for advancing the cause of nuclear disarmament.

This concern is one reason among others why, despite its proven resilience, the NPT was and is facing considerable pressure. If the possessor and umbrella states are not prepared to give up nuclear weapons, what have the non-nuclear weapon states got to lose by withdrawing from the NPT? Perhaps more pressingly, is the threat of withdrawal their one remaining effective leverage on the policies of the nuclear-armed states? That’s a genuine question, not an assertion.

Regardless of what one thinks of the NPT’s historical record in underpinning strategic stability, in recent years nuclear risks have grown with heightened geopolitical tensions, additional roles for nuclear weapons, blurred boundaries between nuclear and precision conventional munitions, and also between nuclear, space, cyber and AI domains. Rhetoric has sharpened, normalising nuclear weapons discourse. Russia’s invasion of Ukraine, it is fair to say, has also profoundly shaped the global discourse on nuclear weapons.

Transformation and reframing

Moreover, the transformation of the Cold War-era nuclear dyad into interlinked nuclear chains, some of them in geographical theatres of contiguous nuclear-armed rivals, diminishes the relevance of the traditional approaches to managing strategic stability among nuclear-armed states, not to mention the added risks from non-state actors.

As Sverre Lodgaard from the Norwegian Institute of International Affairs puts it: “The NPT is in miserable shape, betrayed on the disarmament dimension, stuck in the Middle East and mostly irrelevant to the Asian nuclear-armed states.”

An important motivation for the Ban Treaty was the stubborn refusal of the five nuclear weapon states (NWS) to act on their NPT Article 6 commitment to nuclear disarmament. This background reality is indispensable for understanding the mounting frustrations among the NPT non-NWS that gradually turned into anger and a determination to seize control of the nuclear disarmament agenda. The NPT was gravely weakened by this lackluster implementation of Article 6 and the Ban Treaty’s new normative standard is an effort to redress the weakness, strengthen the NPT and complete its disarmament agenda.

Reframing the debate from disarmament as a security issue into a pressing humanitarian concern was critical to the successful conclusion of negotiations. The old paradigm had proven unable to break through what Ambassador Alexander Kmentt, Director of the Disarmament, Arms Control and Non-Proliferation Department of the Austrian Foreign Ministry, calls “the wall of the nuclear deterrence dogma.”

The reframing of a traditional security debate into a humanitarian discourse had an important precedent in the Ottawa Treaty that banned anti-personnel landmines. An equally important feature of the Ottawa Treaty was the role of a state champion in the carriage of state–civil society partnership to successful conclusion at an international conference or summit. Thus, the International Campaign to Abolish Nuclear Weapons (ICAN) was to the Ban Treaty what the International Campaign to Ban Landmines (ICBL) was to the Ottawa Treaty in forging a global coalition of civil society groups and like-minded states. The Ban Treaty also facilitated a democratic shift in the nuclear debate, with non-NWS using the UN General Assembly, the central democratic body of the international system, as the site and forum of negotiations and adoption.

Folding the umbrella

The Ban Treaty impacts those non-NWS countries that have relied on the nuclear deterrence-based security architecture of the alliance leader’s nuclear weapons. The NPT had camouflaged the underlying inconsistency of many states in professing support for nuclear disarmament – just not yet, like St. Augustine’s plea on chastity – while hosting nuclear weapons, relying on nuclear deterrence for national security and sheltering under the nuclear umbrella of allies.

Yet there is no legal incompatibility between the Ban Treaty and the NPT. While the NPT had enabled the umbrella states to fudge the tensions between membership of a nuclear alliance and commitment to nuclear disarmament, the Ban Treaty has compelled them to confront the hypocrisy head on.

That confrontation might well explain the ferocity of their opposition: it shows the mirror of their disingenuousness to their own peoples, and they do not like it. Given its history of active promotion of nuclear disarmament, I’d love to learn about the internal discussions in Sweden on its decision to seek NATO membership.

The NWS and umbrella allies have effectively formed a mutual support group whereby possession of the bomb is justified by pointing to the demands for nuclear deterrence-based security from the allies. The Ban Treaty forces the issue: do the nuclear-dependent states intend to continue to shelter under the nuclear umbrella or start behaving like non-NWS? In other words, the treaty has the potential to embarrass umbrella states by reopening fundamental domestic debates on the role of nuclear weapons and deterrence strategies.

At the same time, says former Canadian Ambassador for Disarmament Paul Meyer: “To fold the metaphorical ‘nuclear umbrella’ it will be necessary to convince those sheltering under it that it is safe to come out and to recognise that the umbrella may be more of a danger than a protection” – a nuclear lightning rod more than a repellent. Russia’s invasion of Ukraine might well have tilted this balance of calculations for some countries.

Former UN Under-Secretary-General for Disarmament Angela Kane argues that the Ban Treaty has converted a long-standing political aspiration, into a legal framework. But the legal obligations of the treaty cannot apply to non-signatories and the possession of nuclear weapons by nine nuclear-armed states did not suddenly became illegal with the treaty’s entry into force on 22 January 2021.

Equally, however, the claim that a UN-negotiated treaty, following a UN-authorised process and conference, has no implications for the legality and legitimacy of nuclear-weapon possession and practices is also implausible.

Non-signatory possessor states may be placing themselves ‘outside the law’ and the balance of incentives and disincentives for states, individuals, and companies has been recalibrated. Punitive consequences could follow in due course, says Joelien Pretorius from the Western Cape, if patterns of practice and expectations evolve to give the prohibition the status of customary international law.

We are where we are with the Ban Treaty’s inaugural meeting of States Parties just having concluded in Vienna, the NPT’s repeatedly postponed 50th anniversary Review Conference scheduled for 1-26 August, and the war in Ukraine casting a long shadow over the utility and limits of nuclear weapons as a deterrent and tools of coercive diplomacy, the wisdom of having given them up, the incentives to either acquire them or shelter under others’ nuclear umbrella and, above all, the cataclysmic risks of an all-out nuclear war that no one wants but everyone dreads.

About the Author

Ramesh Thakur, a former UN assistant secretary-general, is emeritus professor at the Australian National University, Senior Research Fellow at the Toda Peace Institute, and Fellow of the Australian Institute of International Affairs.

This commentary is an edited version of the address delivered by the author at the launch of The Nuclear Ban Treaty: A Transformational Reframing of the Global Nuclear Order (Routledge, 2022), edited by the author, at the Vienna Center for Disarmament and Non-Proliferation on Friday, 24 June 2022. It is part of a series of commentaries published in cooperation with Toda Peace Institute. The original text of the address can be accessed on their website.

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