The UN Treaty on the Prohibition of Nuclear Weapons: Corrs Human Rights Day event recap

On 10 December 2020, Corrs marked Human Rights Day with an ‘In Conversation’ event focused on the UN Treaty on the Prohibition of Nuclear Weapons (Treaty). 

The event brought together leading experts in the field of nuclear disarmament and the humanitarian impacts of a nuclear event, including;

• Dr Helen Durham – Director of International law and Policy at the International Committee of the Red Cross (ICRC)
  
  
• Associate Professor Tilman Ruff – co-founder of the International Campaign to Abolish Nuclear Weapons (ICAN) and 2017 Nobel Peace Prize recipient
  
  
• Tara Gutman – Legal Advisor at the Australian Red Cross

Discussion between the panellists focused on the significance of the Treaty and how it may shape future obligations of states and corporates in connection with nuclear weapons and nuclear disarmament. The Treaty currently has 51 parties and 86 signatories and is set to enter into force on 22 January 2021, cementing a categorical ban on nuclear weapons, 75 years after their first use. Australia has yet to ratify the Treaty. 

A number of themes that emerged from the conversation are explored below.

Why is this conversation so critical?

The panellists agreed that the prohibition of nuclear weapons is perhaps more urgent now than ever before.

In early 2020, the Doomsday Clock – which symbolises the gravest existential dangers facing humankind – was moved to 100 seconds to midnight, indicating that humankind was closer to the apocalypse than ever in history. This movement was attributed to the increased threats of nuclear war and the continued global failure to address climate change. The adjustment was described as indicative of ‘the most dangerous situation that humanity has ever faced’.

This is unsurprising. Today, there remain around 13,500 nuclear weapons in the hands of only a few states. Many are in a high operational readiness, and have the ability to be rapidly deployed.

It is well understood that the use of even a fraction of these weapons would result in unimaginable loss of human life and have long-term effects on human health, the environment and global food supplies. The World Health Organisation (WHO) has consistently found that all the world’s health resources would not be effective in responding to even a single nuclear attack.

A paradigm shift 

The Treaty was born out of a shift in focus from the assumed defence and international security benefits of nuclear weapons to the catastrophic humanitarian consequences they would incur. The Red Cross, ICAN and members of civil society played a vital role in shaping that discussion.

Dr Durham noted that this shift in momentum began when then President of the ICRC Jakob Kellenberger addressed the Geneva Diplomatic Corp in the lead up to the Non Proliferation Treaty Review Conference in 2010, declaring that the debate on nuclear weapons must be guided not by ‘military doctrine and power politics’, but by ‘human beings, … the fundamental rules of international humanitarian law, and … the collective future of humanity’.  

The humanitarian focus of the discourse continued its momentum with a series of conferences convened to consider the humanitarian impact of nuclear weapons in Norway (2013), Mexico (2014) and Austria (2014). Dr Durham and Dr Ruff reflected on their respective involvement in these conferences, observing how they provided a platform to discuss the humanitarian consequences of nuclear weapon use at the international level, significantly shifting the debate and bringing to bear increased urgency in the need to ban nuclear weapons.

Legal significance and relationship with other treaties 

When the Treaty enters into force, it will be the first international legal instrument which makes nuclear weapons illegal, prohibiting their development, testing, production, acquisition, stockpiling, use, deployment or threat of use. The Treaty will also prohibit the provision of assistance to any state in the conduct of prohibited activities. It is notable that, even with all their destructive power, nuclear weapons are the last form of weapons of mass destruction to be prohibited.

The Treaty will only bind those states which have formally signed and ratified it, which means that non-parties (such as Australia) do not have any formal obligations under the Treaty.  

Other nuclear weapons treaties, including the nearly universal Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which has been in force since 1970, will continue as a cornerstone in the international legal framework governing nuclear weapons. In this regard, Dr Durham observed that the NPT and the Treaty are complimentary rather than conflicting in their shared aspiration to eliminate nuclear weapons.

Legal ramifications for the commercial sector 

For businesses, the Treaty will begin a process of stigmatisation of companies that are involved in the production of nuclear weapons. It may also render their operations unlawful.

Tara Gutman observed that the impact of the Treaty’s prohibitions is already being felt, noting that:

•  the social licence of businesses that make nuclear weapons or their components is being called into question;
  
  
• institutional investors have started to divest from companies manufacturing or financing nuclear weapons; and
  
  
• the Treaty is hoped to result in formal commitments being included in corporates’ environmental, social and governance (ESG) frameworks to screen for, and not to fund, nuclear weapons.

In addition, state parties to the Treaty are expected to make the manufacture of nuclear weapons or their components unlawful under domestic laws in their territories. How these matters impact the commercial sector in the coming years will be interesting to follow.

What’s next?

The panellists reminded us that the entry into force of the Treaty is but a step on what has been a long path towards nuclear disarmament.

It is, however, an important step. As aptly put by Dr Durham, ‘law is a clumsy tool to revolutionise human behaviour’. There was strong agreement among all panellists that the only way to protect humanity from the catastrophic effects of nuclear weapons is to ban and eliminate them once and for all.