Treaty on the Prohibition of
Nuclear Weapons
A Commentary Article by Article
Updated version – May 2022

Daniel Rietiker (Coordination)
Manfred Mohr
Toshinori YamadaInternational Association of
Lawyers Against Nuclear Arms
(IALANA)

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Association of Swiss Lawyers
for Nuclear Disarmament(SAFNA)

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Treaty on the Prohibition of Nuclear Weapons
A Commentary Article by Article
General Introduction
What happened on July 7, 2017 at the United Nations in New York deserves
our attention since it constitutes a real paradigm shift and the end of a period ofstagnation in nuclear disarmament for more than 20 years, namely the adoptionof the Treaty on the prohibiting of nuclear weapons (TPNW). After biological(1972) and chemical weapons (1993), the remaining type of weapons of mass
destruction will therefore be banned contractually.
Even though there is considerable disagreement on the practical impact of thetreaty for nuclear disarmament and international security, its humanitariansignificance has been confirmed by the fact that the International Campaign toAbolish Nuclear Weapons (ICAN), the coalition that was instrumental in thenegotiations and adoption of the treaty, has been awarded the Nobel Peace Prizein 2017.
The treaty entered into force on 22 January 2021, 90 days after the ratificationby the 50th State, Honduras, on 24 October 2020, in accordance with its Article
15 § 1. At the moment of completing the update of the present commentary, 86
States have signed the treaty and 59 have ratified it. 1
The treaty reinforces the norm against nuclear weapons, and relevant existing
international (treaty or customary) law. It creates new momentum for nuclear
disarmament, gives civil society a new tool in its fight for a world free from
nuclear weapons, and puts more pressure on Nuclear Weapons States (NWS)
and their allies.

1 Antigua and Barbuda, Austria, Bangladesh, Belize, Benin, Bolivia, Botswana, Cambodia, Chile,
Comoros, Cook Islands, Costa Rica, Cuba, Dominica, Ecuador, El Salvador, Fiji, The Gambia,
Guinea-Bissau, Guyana, Holy See, Honduras, Ireland, Jamaica, Kazakhstan, Kiribati, Laos,
Lesotho, Malaysia, Maldives, Malta, Mexico, Mongolia, Namibia, Nauru, New Zealand,
Nicaragua, Nigeria, Niue, Palau, Palestine, Panama, Paraguay, Peru, Philippines, Saint Kitts andNevis, Saint Lucia, Saint Vincent and Grenadines, Samoa, San Marino, Seychelles, South Africa,
Thailand, Trinidad and Tobago, Tuvalu, Uruguay, Vanuatu, Venezuela, and Vietnam (26 January2022).

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The new instrument is a “treaty” in the sense of the 1969 Vienna Convention
on the Law of Treaties (VCLT), namely an “international agreement concluded
between States in written form and governed by international law (…)”. 2 As
such, it is quite a complex construction that will certainly raise many questionsof interpretation during its hopefully long life. The starting point of treaty
interpretation is the following “general rule of interpretation”, enshrined in
Article 31 § 1 VCLT:“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.”
Article 31 §§ 2 to 4, as well as Articles 32 and 33 provide for additional andsupplementary means of treaty interpretation. They are listed in the annex to thepresent commentary.
The present short commentary article by article is intended to facilitate thereading and understanding of the new treaty, without going into all the legal
details. It is destinated to a broad readership, including persons not possessing
deep knowledge in international law.
We hope it will stimulate the debate around this new instrument, inform
representatives of civil society, teach young people and students and assist
diplomates and State agents in their work towards ratification of the treaty.
Dr. iur. Daniel Rietiker, Prof. Manfred Mohr, and Prof. Toshinori Yamada(February 2022)

2 Article 2 § 1 a) VCLT.

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Table of content:
Preamble………………………………………………………………… 6
Prohibitions (Article 1)………………………………………………….. 14
Declarations and safeguards (Articles 2 and 3)…………………………. 18
Towards the total elimination of nuclear weapons (Article 4)…………... 21
National implementation (Article 5)…………………………………….

27

Victim assistance and environmental remediation (Article 6), interpreted
combined with international cooperation and assistance (Article 7)…….. 29
Meeting of States Parties (Article 8)…………………………………….

37

Costs (Article 9)…………………………………………………………

39

Amendments (Article 10)……………………………………………….. 40
Settlement of disputes (Article 11)……………………………………… 41
Universality (Article 12)………………………………………………… 43
Signature (Article 13)…………………………………………………… 45
Ratification, acceptance, approval and accession (Article 14)………….. 47
Entry into force (Article 15)…………………………………………….. 48
Reservations (Article 16)………………………………………………... 49
Duration and withdrawal (Article 17)…………………………………… 50
Relationship with other agreements (Article 18)………………………... 51
Depository (Article 19)………………………………………………….. 52
Authentic texts (Article 20)……………………………………………... 53
Annex: Vienna Convention on the Law of Treaties (Articles 31-33)……... 54
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Preamble:
Treaty text:
The States Parties to this Treaty,
Determined to contribute to the realization of the purposes and principles of theCharter of the United Nations [§ 1]
Deeply concerned about the catastrophic humanitarian consequences that would
result from any use of nuclear weapons, and recognizing the consequent need tocompletely eliminate such weapons, which remains the only way to guarantee that
nuclear weapons are never used again under any circumstances [§ 2]
Mindful of the risks posed by the continued existence of nuclear weapons, includingfrom any nuclear-weapon detonation by accident, miscalculation or design, andemphasizing that these risks concern the security of all humanity, and that all States
share the responsibility to prevent any use of nuclear weapons [§ 3]
Cognizant that the catastrophic consequences of nuclear weapons cannot beadequately addressed, transcend national borders, pose grave implications forhuman survival, the environment, socioeconomic development, the global
economy, food security and the health of current and future generations, and havea disproportionate impact on women and girls, including as a result of ionizing
radiation [§ 4]
Acknowledging the ethical imperatives for nuclear disarmament and the urgency ofachieving and maintaining a nuclear-weapon-free world, which is a global public
good of the highest order, serving both national and collective security interests [§5]
Mindful of the unacceptable suffering of and harm caused to the victims of the useof nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear
weapons [§ 6]
Recognizing the disproportionate impact of nuclear-weapon activities on
indigenous peoples [§ 7]

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Reaffirming the need for all States at all times to comply with applicableinternational law, including international humanitarian law and international humanrights law [§ 8]
Basing themselves on the principles and rules of international humanitarian law, inparticular 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[§ 9]Considering that any use of nuclear weapons would be contrary to the rules ofinternational law applicable in armed conflict, in particular the principles and rulesof international humanitarian law [§ 10]
Reaffirming that any use of nuclear weapons would also be abhorrent to theprinciples of humanity and the dictates of public conscience [§ 11]
Recalling that, in accordance with the Charter of the United Nations, States mustrefrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other mannerinconsistent with the Purposes of the United Nations, and that the establishment andmaintenance of international peace and security are to be promoted with the least
diversion for armaments of the world’s human and economic resources [§ 12]
Recalling also the first resolution of the General Assembly of the United Nations,adopted on 24 January 1946, and subsequent resolutions which call for theelimination of nuclear weapons [§ 13]
Concerned by the slow pace of nuclear disarmament, the continued reliance on
nuclear weapons in military and security concepts, doctrines and policies, and thewaste of economic and human resources on programs for the production,
maintenance and modernization of nuclear weapons [§ 14]
Recognizing that a legally binding prohibition of nuclear weapons constitutes animportant contribution towards the achievement and maintenance of a world free of
nuclear weapons, including the irreversible, verifiable and transparent eliminationof nuclear weapons, and determined to act towards that end [§ 15]
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Determined to act with a view to achieving effective progress towards general andcomplete disarmament under strict and effective international control [§ 16]
Reaffirming that there exists an obligation to pursue in good faith and bring to aconclusion negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control [§ 17]
Reaffirming also that the full and effective implementation of the Treaty on the NonProliferation of Nuclear Weapons, which serves as the cornerstone of the nuclear
disarmament and non-proliferation regime, has a vital role to play in promotinginternational peace and security [§ 18]
Recognizing the vital importance of the Comprehensive Nuclear-Test-Ban Treaty
and its verification regime as a core element of the nuclear disarmament and nonproliferation regime [§ 19]
Reaffirming the conviction that the establishment of the internationally recognized
nuclear-weapon-free zones on the basis of arrangements freely arrived at among theStates of the region concerned enhances global and regional peace and security,
strengthens the nuclear non-proliferation regime and contributes towards realizing
the objective of nuclear disarmament [§ 20]
Emphasizing that nothing in this Treaty shall be interpreted as affecting theinalienable right of its States Parties to develop research, production and use of
nuclear energy for peaceful purposes without discrimination [§ 21]
Recognizing that the equal, full and effective participation of both women and men
is an essential factor for the promotion and attainment of sustainable peace andsecurity, and committed to supporting and strengthening the effective participationof women in nuclear disarmament [§ 22]
Recognizing also the importance of peace and disarmament education in all its
aspects and of raising awareness of the risks and consequences of nuclear weapons
for current and future generations, and committed to the dissemination of theprinciples and norms of this Treaty [§ 23]
Stressing the role of public conscience in the furthering of the principles ofhumanity as evidenced by the call for the total elimination of nuclear weapons, andrecognizing the efforts to that end undertaken by the United Nations, theInternational Red Cross and Red Crescent Movement, other international and8regional organizations, non-governmental organizations, religious leaders,parliamentarians, academics and the hibakusha [§ 24]
Have agreed as follows (…).

Commentary:
The preamble of a treaty does not as such contain legally binding obligations
but constitutes nevertheless an important tool for the interpretation of the
instrument, in particular to define its “object and purpose” within the meaningof Article 31 § 1 VCLT, as mentioned in the introduction. In addition, thepreamble is also included in the context to which it shall be referred in treaty
interpretation. 3
As far as the TPNW is concerned, it is obvious that the drafters put a lot ofenergy in the preamble, which, with its 24 paragraphs, is long, detailed, usefuland quite accurately formulated. It underlines the humanitarian nature of thetreaty and is, as such, inspired by similar language having been used in thepreamble of the Ottawa Convention on the prohibition of anti-personnel mines(the “Ottawa Convention) and the Oslo Convention on cluster munitions (the“Oslo Convention”). 4
First of all, it is reiterated in the preamble that the new treaty is meant tocontribute to the purposes and principles of the Charter of the United Nations, 5in particular to the duty of States to refrain in their international relations fromthe threat or use of force against the territorial integrity or politicalindependence of any State. 6 The preamble also recalls the principle that theestablishment and maintenance of international peace and security are to bepromoted with the least diversion for armaments of the world’s human and3 According to Article 31 (2) of VCLT, “[t]he context for the purpose of the interpretation of atreaty shall comprise, in addition to the text, including its preamble and annexes…”.
4 See, regarding the humanitarian and victim-centered nature of the treaty, Daniel Rietiker, “TheTreaty on the Prohibition of Nuclear Weapons: A Further Confirmation on the Human- andVictim-Centered Trend in Arms Control Law”, in: J.L. Black-Branch and D. Fleck (eds.), Nuclear
Non-Proliferation in International Law, Vol. IV, The Hague, 2019, pp. 325-353.
5 Preambular paragraph 1.
6 Preambular paragraph 12; that duty is enshrined in Article 2 § 4 of the UN Charter.

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economic resources. 7 This principle derives from Article 26 of the UN Charter,
which conveys certain powers to the UNSC. 8 Those have nevertheless neverbeen used. The positive influence that appropriate disarmament measures could
have on human development has been studied and recognized for many years. 9
The preamble furthermore refers to the catastrophic humanitarian consequencesthat would result from any use of nuclear weapons. 10 These consequences might
have been obvious since the nuclear bomb droppings at Hiroshima andNagasaki. But only rather recently, the global treatment of the nuclear weapon
subject received a new impetus – resulting in the conference process of Oslo,
Nayarit and Vienna (2013 – 2014) leading to the “Vienna Pledge”, and, finally,to the treaty. 11 It is also important to remind of risks linked to possible nuclear
weapons detonations by accident or miscalculation as the history of last decades
is full of almost catastrophes based on such constellations. Thus, the continued
mere existence of nuclear weapons is most problematic, and the solution can
only be to completely eliminating such weapons, achieving a nuclear–weapon–
free world. 12
Paragraphs 6 and 7 draw the attention to the victims – both of the use(hibakusha) and of the testing of nuclear weapons, with indigenous peoples
being especially affected by nuclear– weapons activities. 13 In addition,

7 Preambular paragraph 12.

8 In order to promote the establishment and maintenance of international peace and security withthe least diversion for armaments of the world's human and economic resources, the Security
Council shall be responsible for formulating, with the assistance of the Military Staff Committee
referred to in Article 47, plans to be submitted to the Members of the United Nations for theestablishment of a system for the regulation of armaments.
See for more information: www.reachingcriticalwill.org/resources/fact-sheets/criticalissues/4565-article-26-of-the-un-charter, accessed on 16/02/2022.
9 See, for instance: www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/4646disarmament-and-development, accessed on 16/02/2022.
10 Preambular paragraphs 2 and 4.
11 See, for more details on these developments, Daniel Rietiker, Humanization of Arms Control:
Paving the Way for a World Free of Nuclear Weapons, Routledge, 2017, pp. 148-157.
12 (See) Preambular paragraphs 3, 2 and 5.
13 See, for the special vulnerability of indigenous peoples, Rietiker, Humanization of Arms
Control, op.cit., pp. 223-229.

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paragraph 4 also refers to future generations as well as women and girls. 14
Mentioning the suffering and/or harm of victims is one of the hallmarks of
Humanitarian Disarmament Treaties. 15
Paragraph 8 recalls the need of all States to comply with applicable internationallaw, including international humanitarian law and human rights law. The
reference to human rights is a reflection of the humanitarian and victim-centred
nature of the treaty; here, it is, among others, the right to life which matters. 16
In its General Comment No. 14, the Human Rights Committee, implementing
the International Covenant on Civil and Political Rights (ICCPR) resumed: „It
is evident that the designing, testing, manufacture, possessing and deploymentof nuclear weapons are among the greatest threats to the right to life whichconfront mankind today.” 17 In its General comment No. 36 which replaced
General Comment No. 14, the Committee stated: “[t]he threat or use of weaponsof mass destruction, in particular nuclear weapons, which are indiscriminate ineffect and are of a nature to cause destruction of human life on a catastrophic
scale, is incompatible with respect for the right to life and may amount to acrime under international law.” 18The principles and rules of international humanitarian law explicitly mentioned
in paragraph 9 are among the most fundamental norms of this branch ofinternational law. They are ranging from the not unlimited right to choose
methods or means of warfare to the rules for the protection of the naturalenvironment. Any use of nuclear weapons would be contrary to the rules ofinternational law applicable in armed conflict, in particular the principles and
14 See in this regard Gabriella Venturini, “Gender Perspective on Nuclear Weapons and Human
Rights”, in: J.L. Black-Branch and D. Fleck (eds.), Nuclear Non-Proliferation in InternationalLaw, Vol. IV, The Hague, 2019, pp. 99-115.
15 Preamble paragraph 1 of Ottawa Convention and preamble paragraphs 2 and 17 of Oslo
Convention.
16 Regarding the right to life and other human rights affected by the use or testing of nuclear
weapons see Rietiker, Humanization of Arms Control, op.cit., pp. 173-222.
17 CCPR General Comment No. 14: Article 6 (Right to life). Nuclear Weapons and the Right toLife. Adopted at the Twenty-third Session of the Human Rights Committee on 9 November 1984,§ 4.
18 Paragraph 66 of CCPR General Comment No. 36: Article 6 (right to life), Adopted at the 124th
session of the Human Rights Committee on 30 October 2018.

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rules of international humanitarian law (preamble paragraph 10) and would also
be abhorrent to the principles of humanity and the dictates of public conscience(preamble paragraph 11). It is important that all states, whether or not State
Parties of TPNW, are bound by the principles and rules in preamble paragraph
9. Preamble paragraph 10, which considers – without any exception - illegalityof the use of nuclear weapons based on the universal principles and rules
mentioned, overcomes the 1996 ICJ Advisory Opinion that proceeded from thegeneral illegality but could not “conclude definitively” (il)legality of the use of
nuclear weapons “in an extreme circumstance of self-defence, in which the very
survival of a State would be at stake”. 19 The statement in preamble paragraph
11 is an expression of the so called “Martens Clause”, which represents aclassical principle of the laws of war to cover situations beyond written
international law. In the same logic, the clause functions as a kind of safety net,
while, in the context of the treaty, it may also be conceived as a sign of openness
and flexibility. 20 Ottawa and Oslo Conventions also refer to the Martens Clausein their preambles. Preamble Paragraph 11 of the new treaty is unique in that it
not only refers to the Martens clause, but also reaffirms that any use of nuclear
weapons would be abhorrent to that clause.
Several paragraphs of the preamble are devoted to the existing non-proliferation
and arms control regime and the unfulfilled promises in the field of nuclear
disarmament. It is reiterated that the very first resolution of the UNGA, adopted
on 24 January 1946, was devoted to nuclear disarmament, but that more
recently, no significant progress has been made in this field. 21 On the contrary,
nuclear weapons are still part of the military and security concepts, doctrinesand policies, and the NWS are investing huge amounts of money in themodernization of their arsenals. 22 In this connection, the preamble recalls theobligation to pursue in good faith and bring to a conclusion negotiations leading
to nuclear disarmament in all its aspects under strict and effective international
control, as provided for by Article VI of the Non-Proliferation Treaty (NPT)19 ICJ Reports 1996, conclusion E (see also below).

20 For a contemporary version of the Martens Clause see Article 1 § 2 of the 1977 Protocol I to

the 1949 Geneva Conventions.
21 Preambular paragraphs 13 and 14.
22 Preambular paragraph 14.

12and as has been confirmed by the ICJ in its 1996 Advisory Opinion. 23 It is
important to recall that all States are bound by this duty, whether or not they are
Parties to the NPT.
In this regard, the preamble furthermore stresses that the NPT remains thecornerstone of the nuclear disarmament and non-proliferation regime, 24
emphasizes the vital role of the Comprehensive Nuclear-Test-Ban Treaty(CTBT) in the field and underlines the importance of the establishment ofregional nuclear Weapon free zones (NWFZ) for peace and security and for aworld free of nuclear weapons. 25 Finally, the drafters found it relevant to include
a reminder of the inalienable right of States to develop research, production anduse of nuclear energy for peaceful purposes without discrimination, the socalled 3rd pillar of the NPT, deriving from its Article IV. 26
Moreover, two preambular paragraphs are devoted to the need to strengthen theeffective participation of women in nuclear disarmament and the importance of
disarmament education and awareness raising of the provision of the new treaty
and of the risks and consequences of nuclear weapons for current and future
generations. 27
Finally, in the last preambular paragraph, the important efforts made by theUnited Nations, the International Red Cross and Red Crescent Movement, otherinternational and regional organizations, non-governmental organizations,religious leaders, parliamentarians, academics and the hibakusha, is recognized.
Very similar language has already been used in the Ottawa and the Oslo
Conventions, 28 but without including explicitly religious leaders,parliamentarians, and academics. It derives from the travaux preparatoires of
all three treaties that the main driving force behind the new treaties was civilsociety, backed up by some like-minded governments. In the case of the TPNW,
23 ICJ Reports 1996, conclusion F.

24 See also the commentary on Article 18, below.

25 Preambular paragraphs 18-20. For the relationship between the new treaty and the NPT and the
CTBT, see below, “Relationship with other agreements” (Article 18).
26 The other two pillars are the non-proliferation obligations (Article I and II NPT) and thedisarmament duties (Article VI NPT).
27 Preambular paragraphs 22-23.
28 Ottawa Convention, preambular paragraph 8, and Oslo Convention, preambular paragraph 17.

13the interplay or coaction between civil society and States has neverthelessreached a new quality. Civil society actors like those of ICAN or IALANA havebeen directly involved in the negotiation process, presenting own drafts andsuggestions. This may also be seen as a sign of democratization of the United
Nations, which eventually returned to be a forum of nuclear disarmament. Thisis even more valuable considering the stalemate of the Conference on
Disarmament for many years due to its consensus principle. In addition, the roleof public conscience stressed in Preamble § 24, when read in conjunction with
Preamble § 11, may be said to serve the function of transforming the
democratized call for the total elimination of nuclear weapons into a norm
against nuclear weapons.

Prohibitions (Article 1):Treaty text:
1. Each State Party undertakes never under any circumstances to:(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile
nuclear weapons or other nuclear explosive devices;(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive
devices or control over such weapons or explosive devices directly or indirectly;(c) Receive the transfer of or control over nuclear weapons or other nuclear
explosive devices directly or indirectly;(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;(e) Assist, encourage or induce, in any way, anyone to engage in any activity
prohibited to a State Party under this Treaty;(f) Seek or receive any assistance, in any way, from anyone to engage in any activity
prohibited to a State Party under this Treaty;(g) Allow any stationing, installation or deployment of any nuclear weapons orother nuclear explosive devices in its territory or at any place under its jurisdiction
or control.
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Commentary:
Neither nuclear weapons, nor other nuclear explosive devices are defined in theTreaty and while the term “nuclear weapons” refers to devices designed torelease energy in an explosive manner as a result of nuclear fission, nuclear
fusion, or a combination of the two processes 29 , the term “other nuclear
explosive devices” is deprived of such common definition. There is, though, asettled understanding among states, that a nuclear explosive device means adevice, that has (yet) not been weaponized, meaning that it is not contained inand delivered by, for example, a missile, rocket, or bomb. 30 A broad
understanding of this generic term makes a wider scope of application of thetreaty possible.
Like the Ottawa and Oslo Conventions, Article 1 of the new treaty imposes a
set of prohibitions with a view to eliminating an entire category of weapons. 31
The prohibitions in Article 1 are more comprehensive than clauses inserted inpreceding nuclear disarmament treaties in that it prohibits a wide range of
nuclear weapons-related activities, including the development, testing,production, and manufacture of nuclear weapons (letter a)), and is nondiscriminatory in that, unlike the NPT, it does not discriminate between NWS
and NNWS parties.
From our point of view, the most important prohibition is the ban on use
contained in Article 1 § 1(d). Quite surprisingly, the use of nuclear weapons has
not been explicitly prohibited in an earlier treaty, 32 contrary to many otherweapons, less destructive ones. 33 It is noteworthy to underline that, in
29 Norris, R. S. and Cochran, Thomas B. (2021), Nuclear weapon, in: Encyclopedia Britannica.
30 Singh,

Nidhi (2020), Victim Assistance under the Treaty on the Prohibition of Nuclear
Weapons: An Analysis, In: Journal for Peace and Nuclear Disarmament, 3:2, pp. 265-282, 270.
31 See, for an overview, John Burroughs, Key Issues in Negotiations for a Nuclear Weapons
Prohibition Treaty, Arms Control Today, Vol. 47, June 2017, pp. 6-13.
32 In exceptional cases, negative security assurances are provided for in protocols to which
Nuclear Weapons States are parties in nuclear-weapon-free zones. In addition, many of thenuclear weapons States that are parties to these protocols have reservations about their use of
nuclear weapons in certain cases.
33 See, in particular, the 1925 Geneva Gas Protocol, Article 1 § 1 b) of the 1993 Chemical
Weapons Convention, and Article 1 § 1 a) of the Ottawa and Oslo Conventions.

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accordance with Article 1, the States parties undertake “never under any
circumstances” to engage in the activities prohibited by the treaty. In otherwords, those acts are forbidden not only vis-à-vis other States parties, but alsowith regards non-Parties and even non-State actors, such as rebel groups or
terrorists. In addition, belligerent reprisals are also prohibited. 34
The treaty ban on use or threatening to use nuclear weapons formulated in the
TPNW depicts a clear confirmation of the ICJ’s statement in the 1996 Advisory
Opinion according to which ”the threat or use of nuclear weapons would
generally be contrary to the rules of international law applicable in armed
conflict, and in particular the principles and rules of humanitarian law”
However, the Court continued, that it ”cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a State would be atstake” 35 This “escape hatch” is in contradiction to the Court’s pronouncementon the general illegality of the use of nuclear weapons, based on the principles
of proportionality and of international humanitarian law. These principles arealso valid in a situation of self-defence, even in an extreme form. The Court
itself declared earlier that, in view of the unique characteristics of nuclear
weapons, their use in fact seems “scarcely reconcilable” with respect forhumanitarian law requirements. 36
The TPNW, not containing such “exceptions” and not allowing reservations, 37
is removing those ambiguities and contradictions. Once ratified by many States
it will establish or confirm an “absolute” prohibition of use. Moreover, if thetreaty will be ratified by many States, its provisions might be doubled by acustomary norm prohibiting nuclear weapons even for States not acceding to
the treaty because of the “fundamentally norm-creating character” of the

34 See Stuart Casey-Maslen, The Treaty on the Prohibition of Nuclear Weapons: A Commentary(Oxford Commentaries on International Law), 2019, pp. 134-135, para. 1.09.

35 Advisory Opinion, op.cit., § 105 § 2 E.
36 Ibid, paragraph 95.

37 See below; “Reservations” (Article 16).

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treaty. 38 Customary law is another source of international law - not lessimportant than treaties - and defined as “evidence of a general practice accepted
as law.” 39 Nuclear-weapon states and their allies, however, have denied that the
new treaty becomes customary law. Some states and commentators have
however suggested that these objections do not prevent the formation ofcustomary law, relying on the rule of persistent objector. 40
Most importantly, Article 1 also prohibits to threaten to use nuclear weapons.
Seen together with the ban on possession of nuclear weapons, nuclear policies
based on deterrence have become ever more questionable by the treaty
producing effects of delegitimization in this regard. This prohibition raises thequestion whether deterrence-based nuclear policies are prohibited by the
TPNW. The preparatory work to the treaty, and in particular the negotiations
held in New York did not reach a final conclusion on this point but it isundisputed that it was one of the main goals of civil society and the Statesworking towards the adoption of the new treaty to delegitimize decades-old
policies relying on nuclear weapons. 41 Following the adoption of the treaty, on
July 7, 2017, the Chairperson Ambassador Whyte made the following
declaration during a press conference:“It is true that there was an important discussion about the inclusion of theissue of threat of use. So, it was finally agreed by the conference that
Article 1 should include a prohibition to use or to threaten to use nuclear
weapons, in the understanding that the threat of use lies at the heart ofdeterrence and the current security paradigms that the world started after
1945 when the bomb, the nuclear power, was created.”

38 North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands),
Judgment, 1969 I.C.J. Rep. 3 (February 20), § 72; see also Asylum Case (Colombia v. Peru),
Judgment, 1950 I.C.J. Rep. 6, at 277–78 (November 20).
39 Statute of the International Court of Justice, Article 38 § 1. See also below, “Universality”(Article 12).
40 For example, Mexico, Report of the Secretary-General, A/75/138, p. 10; Gro Nystuen, Kjølv
Egeland, and Torbjørn Graff Hugo, The TPNW: Setting the record straight, NORWEGIANACADEMY OF INTERNATIONAL LAW, OCTOBER 2018, pp. 32-33.
41 See: www.youtube.com/watch?v=lwTEx1jixSE, (time stamp 15:02 onwards), accessed on
16/02/2022.

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Noteworthy is also letter g) of Article 1 which prohibits allowing any stationing,
installation or deployment of any nuclear weapons or other nuclear explosive
devices in its territory or at any place under its jurisdiction or control. Thisclause prohibits, for instance, NATO members to host their allies’ nuclear
weapons on their territory. Otherwise, the treaty does not address the questionof inter-operability between NWS and their allies, contrary for example to theOslo Convention on Cluster Munitions. 42
In this connection, letter e) of Article 1 is also noteworthy. Indeed, NATOmembers have questioned the prohibition of assisting, encouraging, andinducing anyone’s prohibited activities (letter e) as incompatible with themembership of NATO. Moreover, a certain disappointment was felt among civilsociety and certain States about the fact that financing or transition of nuclear
weapons is not explicitly forbidden by the new treaty. One the other hand, it isargued here that such activities are covered, implicitly by letter e). 43

Declarations and safeguards (Article 2 and 3):
Treaty text:
Article 2: Declarations
1. Each State Party shall submit to the Secretary-General of the United Nations, notlater than 30 days after this Treaty enters into force for that State Party, a declarationin which it shall:(a) Declare whether it owned, possessed or controlled nuclear weapons or nuclear
explosive devices and eliminated its nuclear-weapon programme, including theelimination or irreversible conversion of all nuclear-weapons-related facilities,
prior to the entry into force of this Treaty for that State Party;

42 See, in particular, Article 21 of the Oslo Convention. See also:

https://safna.org/2017/06/06/nuclear-coalitions-and-the-ban-treaty-a-reaction-to-the-first-drafttreaty-text/, accessed on 16/02/2022.
43 See also Declaration on 30 January 2018 by Cuba upon ratification.

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(b) Notwithstanding Article 1 (a), declare whether it owns, possesses or controls
any nuclear weapons or other nuclear explosive devices;(c) Notwithstanding Article 1 (g), declare whether there are any nuclear weapons
or other nuclear explosive devices in its territory or in any place under its
jurisdiction or control that are owned, possessed or controlled by another State.
2. The Secretary-General of the United Nations shall transmit all such declarations
received to the States Parties.
Article 3: Safeguards
1. Each State Party to which Article 4, paragraph 1 or 2, does not apply shall, at aminimum, maintain its International Atomic Energy Agency safeguards obligations
in force at the time of entry into force of this Treaty, without prejudice to any
additional relevant instruments that it may adopt in the future.
2. Each State Party to which Article 4, paragraph 1 or 2, does not apply that has not
yet done so shall conclude with the International Atomic Energy Agency and bring
into force a comprehensive safeguard agreement (INFCIRC/153 (Corrected)).
Negotiation of such agreement shall commence within 180 days from the entry into
force of this Treaty for that State Party. The agreement shall enter into force no later
than 18 months from the entry into force of this Treaty for that State Party. EachState Party shall thereafter maintain such obligations, without prejudice to any
additional relevant instruments that it may adopt in the future.

Commentary:
Past experience, in particular the long preparatory work to the 1993 Chemical
Weapons Convention (CWC) and the CTBT, has shown that verification
clauses always tend to complicate the negotiation of a new arms control treaty– therefore, the States negotiating the TPNW, eager to adopt a potential treaty
in a short period of time, have opted for straightforward, simple clauses. In thisregard, it follows the examples of the Ottawa and Oslo Conventions too. In fact,
under Article 2 (Declarations), States Parties have to submit to the SecretaryGeneral of the United Nations, within 30 days after the entry into force of thetreaty, a declaration in which they (a) declare whether it owned, possessed orcontrolled nuclear weapons or nuclear explosive devices and eliminated its
nuclear-weapon programme, including the elimination or irreversible
19

conversion of all nuclear-weapons-related facilities, prior to the entry into forceof the treaty; (b) declare whether they own, possess or control any nuclear
weapons or other nuclear explosive devices, and (c) declare whether there are
any nuclear weapons or other nuclear explosive devices in its territory or in any
place under its jurisdiction or control that are owned, possessed or controlled byanother State. 44 On these basis, Casey-Maslen stated that “Article 2 concerns
the minimal reporting obligations applied to every state adhering to the 2017
Treaty”. 45 However, it is important to note that the TPNW does not oblige State
Parties to submit a general or annual report explaining a situation of theimplementation that has already established under another disarmament
treaty. 46 These three scenarios actually correspond to the three options open to– former or current – NWS and their allies under Article 4 dealing with nuclear
disarmament. 47
In terms of safeguards, it was the intention of the negotiating delegations thatthe new treaty should rely on existing safeguard mechanisms. Therefore, Article
3 imposes for States not possessing or controlling nuclear weapons in the senseof Article 4 §§ 1 and 2 the duty, at a minimum, to maintain their International
Atomic Energy Agency (IAEA) safeguards obligations in force at the time ofthe entry into force of the treaty, without prejudice to any additional instrumentsthat they may adopt in the future (Article 3 § 1).

44
55
statessubmitted
theirdeclarations
to
the
UN
Office.
Seewww.un.org/disarmament/wmd/nuclear/tpnw/article-2-of-the-tpnw/, accessed on 16/02/2022;
Furthermore, the ICRC elaborated a model declaration for states, available atwww.icrc.org/en/document/model-declarations-under-article-2-treaty-prohibition-nuclearweapons, accessed on 16/02/2022.
45 Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford
University Press, p.174; See also Nuclear Weapons Ban Monitor, “The obligation to submit
declarations and reports”, available at https://banmonitor.org/positive-obligations-1/theobligation-to-submit-declarations-and-reports, accessed on 16/02/2022.
46 See Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford
University Press, p. 174 and p. 177.
47 See below, “Towards the total elimination of nuclear weapons” (Article 4).

20

States not yet having concluded a comprehensive safeguard agreement(INFCIRC/153 (corrected) 48) with the IAEA shall do so within a certain periodof time in accordance with Article 3 § 2. 49

Towards the total elimination of nuclear weapons (Article 4)Treaty text:
1. Each State Party that after 7 July 2017 owned, possessed or controlled nuclear
weapons or other nuclear explosive devices and eliminated its nuclear-weapon
programme, including the elimination or irreversible conversion of all nuclearweapons-related facilities, prior to the entry into force of this Treaty for it, shallcooperate with the competent international authority designated pursuant toparagraph 6 of this Article for the purpose of verifying the irreversible eliminationof its nuclear-weapon programme. The competent international authority shallreport to the States Parties. Such a State Party shall conclude a safeguards
agreement with the International Atomic Energy Agency sufficient to provide
credible assurance of the non-diversion of declared nuclear material from peaceful
nuclear activities and of the absence of undeclared nuclear material or activities inthat State Party as a whole. Negotiation of such agreement shall commence within
180 days from the entry into force of this Treaty for that State Party. The agreement
shall enter into force no later than 18 months from the entry into force of this Treaty
for that State Party. That State Party shall thereafter, at a minimum, maintain thesesafeguards obligations, without prejudice to any additional relevant instruments thatit may adopt in the future.
48 IAEA, The Structure and Content of Agreements Between the Agency and States Required inConnection with the Treaty on the Non-Proliferation of Nuclear Weapons, INFCIRC/153/Corr.,
available at www.iaea.org/publications/documents/infcircs/structure-and-content-agreementsbetween-agency-and-states-required-connection-treaty-non-proliferation-nuclear-weapons,
accessed on 16/02/2022; See also Nuclear Weapons Ban Monitor, “The obligation to have
Safeguards Agreements and Additional Protocols with the IAEA”, available athttps://banmonitor.org/positive-obligations-1/the-obligation-to-have-safeguards-agreementsand-additional-protocols-with-the-iaea, accessed on 16/02/2022.
49 More deeper analysis of safeguard provision, see Giorgou, E. (2018), “Safeguards Provisions
in the Treaty on the Prohibition of Nuclear Weapons”, Arms Control Law, published on 11 April
2018, available at https://armscontrollaw.com/2018/04/11/safeguards-provisions-in-the-treatyon-the-prohibition-of-nuclear-weapons/#_ftn1, accessed on 16/02/2022.

21

2. Notwithstanding Article 1 (a), each State Party that owns, possesses or controls
nuclear weapons or other nuclear explosive devices shall immediately remove themfrom operational status, and destroy them as soon as possible but not later than adeadline to be determined by the first meeting of States Parties, in accordance witha legally binding, time-bound plan for the verified and irreversible elimination ofthat State Party’s nuclear-weapon programme, including the elimination or
irreversible conversion of all nuclear-weapons-related facilities. The State Party, no
later than 60 days after the entry into force of this Treaty for that State Party, shallsubmit this plan to the States Parties or to a competent international authority
designated by the States Parties. The plan shall then be negotiated with thecompetent international authority, which shall submit it to the subsequent meetingof States Parties or review conference, whichever comes first, for approval inaccordance with its rules of procedure.
3. A State Party to which paragraph 2 above applies shall conclude a safeguards
agreement with the International Atomic Energy Agency sufficient to provide
credible assurance of the non-diversion of declared nuclear material from peaceful
nuclear activities and of the absence of undeclared nuclear material or activities in
the State as a whole. Negotiation of such agreement shall commence no later thanthe date upon which implementation of the plan referred to in paragraph 2 iscompleted. The agreement shall enter into force no later than 18 months after thedate of initiation of negotiations. That State Party shall thereafter, at a minimum,
maintain these safeguards obligations, without prejudice to any additional relevant
instruments that it may adopt in the future. Following the entry into force of theagreement referred to in this paragraph, the State Party shall submit to the SecretaryGeneral of the United Nations a final declaration that it has fulfilled its obligations
under this Article.
4. Notwithstanding Article 1 (b) and (g), each State Party that has any nuclear
weapons or other nuclear explosive devices in its territory or in any place under its
jurisdiction or control that are owned, possessed or controlled by another State shallensure the prompt removal of such weapons, as soon as possible but not later thana deadline to be determined by the first meeting of States Parties. Upon the removalof such weapons or other explosive devices, that State Party shall submit to theSecretary-General of the United Nations a declaration that it has fulfilled its
obligations under this Article.
5. Each State Party to which this Article applies shall submit a report to eachmeeting of States Parties and each review conference on the progress made towards
22the implementation of its obligations under this Article, until such time as they are
fulfilled.
6. The States Parties shall designate a competent international authority or
authorities to negotiate and verify the irreversible elimination of nuclear-weapons
programmes, including the elimination or irreversible conversion of all nuclearweapons-related facilities in accordance with paragraphs 1, 2 and 3 of this Article.
In the event that such a designation has not been made prior to the entry into forceof this Treaty for a State Party to which paragraph 1 or 2 of this Article applies, theSecretary-General of the United Nations shall convene an extraordinary meeting ofStates Parties to take any decisions that may be required.

Commentary:
It was always the conviction of the negotiations States that a ban treaty would
only constitute a first step towards the end goal of a world free of nuclear
weapons. Therefore, it was felt necessary to allow and encourage the NWS tojoin the treaty. The result of this is reflected in its – rather complex and lengthy– Article 4, entitled “Towards the total elimination of nuclear weapons”.
Closely linked to declarations and safeguards, this provision has to be read
together with Articles 2 and 3.
Casey-Maslen classified three different categories of State Parties under Article
4: (1) “those that had owned, possessed, or controlled nuclear weapons or othernuclear explosive devices the day after the data of adoption of the Treaty but
had destroyed them by the time they became party to it” (former nuclear-armed
state parties) (Article 4 § 1); (2) “those that still own, possess, or control nuclear
weapons or other nuclear explosive devices on the date they become party to
the Treaty” (nuclear-armed state parties) (Article 4 § 2); and (3) “those that havenuclear weapons or other nuclear explosive devices belonging to a foreign state
located on any territory under their jurisdiction or control on the data hey
become a state party” (state parties hosting a foreign state’s nuclear weapons)(Article 4 § 4). 50 In the following, each paragraph will be briefly explained.

50 Casey-Maslen,

S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford
University Press, p. 193.

23

According to its paragraph 1, a State Party that, after 7 July 2017, owned,
possessed or controlled nuclear weapons or other nuclear explosive devices but
eliminated its nuclear-weapon programme and relevant facilities prior to theentry into force of the treaty for it, shall cooperate with the international
authority, to be designated later, in charge of verifying the irreversible
elimination of its nuclear-weapon programme, with a view to concluding asafeguard agreement with the IAEA. In other words, this first scenario isprovided for NWS that prefer doing their homework first by getting rid of their
nuclear weapons before joining the treaty.
Paragraph 2 stipulates that a State Party that owns, possesses or controls nuclear
weapons when it becomes Party to the treaty shall immediately remove themfrom operational status and destroy them as soon as possible but not later thana deadline to be determined by the first meeting of States Parties, 51 inaccordance with a legally binding, time-bound plan for the verified andirreversible elimination of its nuclear-weapon programme and related facilities.
Such a plan has to be submitted to the States Parties or the mentioned
international authority. The State must furthermore conclude a safeguards
agreement with the IAEA. 52 This second option allows NWS to join the treaty
before destroying their nuclear weapons and, as a result, to benefit from thedisarmament regime proposed by the treaty. 53
Finally, paragraph 4 addresses States that have nuclear weapons in their territorythat are owned, possessed or controlled by another State. Such States mustensure the prompt removal of those weapons. This scenario is directed, inparticular, at NATO member States hosting US nuclear weapons, such as
Belgium, Germany, Italy and Turkey. 54

51 Article 8.

52 Article 4 § 3.

53 See Nuclear Weapons Ban Monitor, “The obligation to eliminate nuclear weapons”, available
at https://banmonitor.org/positive-obligations-1/the-obligation-to-eliminate-nuclear-weapons,
accessed on 16/02/2022.
54 Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford
University Press, p.200.

24

Altogether the treaty schemes on safeguards, institutional structures anddisarmament are an indication of the openness and flexibility of the treaty. Thus,
the treaty itself can be developed into an instrument providing for the complete(contractual) ban on nuclear weapons. How such an instrument, in an ideal case,
can look like, is demonstrated by the Draft Model Convention on Nuclear
Weapons. 55
It is not certain that NWS will accept, in the near future, a text that they havenot agreed upon and in whose negotiations they have not even participated. On
the contrary, it has to be recalled that while 122 States voted in favour of the
adoption of the treaty, none of the NWS was present. Moreover, not only havethey completely absent before and during the negotiations in New York, but the
US, UK and France were even issuing a statement on the same day which reads
as follows:“France, the United Kingdom and the United States have not taken part in
the negotiation of the treaty on the prohibition of nuclear weapons. We do
not intend to sign, ratify or ever become party to it. 56 Therefore, there will
be no change in the legal obligations on our countries with respect tonuclear weapons. For example, we would not accept any claim that thistreaty reflects or in any way contributes to the development of customaryinternational law. Importantly, other States possessing nuclear weapons
and almost all other States relying on nuclear deterrence have also nottaken part in the negotiations.
This initiative clearly disregards the realities of the international security
environment. Accession to the ban treaty is incompatible with the policyof nuclear deterrence, which has been essential to keeping the peace inEurope and North Asia for over 70 years. A purported ban on nuclear
weapons that does not address the security concerns that continue to makenuclear deterrence necessary cannot result in the elimination of a single
nuclear weapon and will not enhance any country’s security, norinternational peace and security. It will do the exact opposite by creatingeven more divisions at a time when the world needs to remain united in theface of growing threats, including those from the DPRK’s ongoing
55 UN-Doc. A/62/650, 18 January 2008.
56 Emphasis added.

25

proliferation efforts. This treaty offers no solution to the grave threat posedby North Korea’s nuclear program, nor does it address other security
challenges that make nuclear deterrence necessary. A ban treaty also risks
undermining the existing international security architecture which
contributes to the maintenance of international peace and security.
We reiterate in this regard our continued commitment to the Treaty on the
Non-Proliferation of Nuclear Weapons (NPT) and reaffirm ourdetermination to safeguard and further promote its authority, universality
and effectiveness. Working towards the shared goal of nuclear
disarmament and general and complete disarmament must be done in a waythat promotes international peace and security, and strategic stability,
based on the principle of increased and undiminished security for all.
We all share a common responsibility to protect and strengthen ourcollective security system in order to further promote international peace,stability and security.” 57

These and similar (NWS and NATO) statements prove to the fact that theirpolicy of nuclear deterrence is touched upon by the TPNW. From our point ofview, it is not the treaty itself but the constant behaviour and unfulfilled
disarmament promises of NWS which are undermining the existing security anddisarmament architecture. The complete absence of the NWS during the
preparatory phase and the negotiations towards the new treaty, combined withthis kind of statement, seriously raises the question of “good faith” of thoseStates in the sense of Article VI NPT, imposing on all States the duty tonegotiate in good faith in view of general and complete disarmament. 58

57 https://usun.usmission.gov/joint-press-statement-from-the-permanent-representatives-to-theunited-nations-of-the-united-states-united-kingdom-and-france-following-the-adoption/
58 Rietiker, D. (2017), “New hope for Nuclear Disarmament or “Much Ado About Nothing?”:
Legal Assessment of the New “Treaty on the Prohibition of Nuclear Weapons” and the Joint
Statement by the USA, UK, and France Following its Adoption”, Harvard International Law
Journal, Volume 59, Fall 2017, p. 29., available at https://harvardilj.org/2017/12/new-hope-fornuclear-disarmament-or-much-ado-about-nothing-legal-assessment-of-the-new-treaty-on-theprohibition-of-nuclear-weapons-and-the-joint-statement-by-the/, accessed on 16/02/2022.

26

National implementation (Article 5)Treaty text:
1. Each State Party shall adopt the necessary measures to implement its obligations
under this Treaty.
2. Each State Party shall take all appropriate legal, administrative, and othermeasures, including the imposition of penal sanctions, to prevent and suppress any
activity prohibited to a State Party under this Treaty undertaken by persons or on
territory under its jurisdiction or control.

Commentary:
Article 5 imposes on State Parties the ‘general duty’ or ‘positive obligation’ toimplement legal obligations required by the TPNW at national level. 59 This
provision can be considered as a standard clause that was, almost identically,
already included inter alia in the Ottawa and the Oslo Conventions. 60 Such aclause is necessary since the treaty is of so-called “non-self-executing”
character. In other words, it imposes legal obligations on private and legal
person or creates rights in their favour only once it has been introduced innational law. 61
By the inclusion of the words “undertaken by persons or on territory under its
jurisdiction or control”, Article 5 specifies that the drafters did not want toestablish a universal criminal jurisdiction with the possibility of States Parties
to prosecute individuals who have no link with that State. Considering thetransboundary harm that nuclear testing and use cause, such universal criminal
jurisdiction would have been preferable. Nothing prevents the States Parties,
however, to go further than Article 5 and confer universal jurisdiction to its
national tribunals. This can be deduced, inter alia, from common Article 1 ofthe 1949 Geneva Conventions which lays down the duty “to respect and ensure
respect” those conventions; it is our understanding that the principles and key
provisions of those conventions would be applicable and relevant in the case of
59 See Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford
University Press, pp. 202-206.
60 Article 9 of both Conventions.
61 See, for an example, the ICJ in the case of LaGrand (Germany v. United States), ICJ Reports
2004, § 77.

27

use of nuclear weapons. Moreover, the Geneva Conventions and the 1977
Protocol No. 1 request the States parties to prosecute or extradite (aut dedere
aut judicare) persons allegedly having committed grave breaches of those
instruments. 62 It is from our point of view likely that the use of nuclear weapons
in an inhabited area would be constitutive of such grave breaches. 63
The International Committee of the Red Cross (ICRC) published a model law
for the treaty on the prohibition of nuclear weapons to provide for state parties
an incentive for enacting national legislation which reflects the provisions of
the TPNW. 64 This model law is composed of the following six parts: (1)Introductory provisions; (2) Implementation of the treaty; (3) Inspection andverification; (4) Safeguards; (5) Victim assistance and environmental
remediation, and (6) Final Provisions. In particular, if a person violates Section
7 of the ICRC Model Law, Section 8 of the same instrument imposes penalties,
including imprisonment or fine, on the person. Furthermore, Sections 17 and 18of the ICRC Model Law clarifies the obligations of national authority to provide
adequate assistance for individuals who are affected by the use or testing of
nuclear weapons within the jurisdiction 65 and to take ‘all necessary andappropriate measures towards the environmental remediation of areas so
contaminated, for the purpose of repairing, reducing or mitigating
environmental damage”. 66

62 See, for instance, Articles 146 and 147 of the Geneva Convention No. IV relative to theProtection of Civilian Persons in Time of War, or Article 85 § 3 of Protocol No. 1.
63 See, in this regard, in particular, Article 85 § 3 of Protocol No. 1: 3. “In addition to the grave
breaches defined in Article 11, the following acts shall be regarded as grave breaches of thisProtocol, when committed willfully, in violation of the relevant provisions of this Protocol, andcausing death or serious injury to body or health: (a) making the civilian population or individual
civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian
population or civilian objects in the knowledge that such attack will cause excessive loss of life,
injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii)(…).”
64 ICRC, Model Law for the Treaty on the Prohibition of Nuclear Weapons, March 2019,available at https://www.icrc.org/en/document/model-law-treaty-prohibition-nuclear-weapons-0,
accessed on 16/02/2022.
65 Section 17(1) of the ICRC Model Law.
66 Section 18(1) of the ICRC Model Law.

28

Victim assistance and environmental remediation (Article 6),interpreted combined with international cooperation and assistance(Article 7)
Treaty text:
Article 6:
1. 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 applicableinternational humanitarian and human rights law, adequately provide age- andgender-sensitive assistance, without discrimination, including medical care,rehabilitation and psychological support, as well as provide for their social andeconomic inclusion.
2. Each State Party, with respect to areas under its jurisdiction or control
contaminated as a result of activities related to the testing or use of nuclear weapons
or other nuclear explosive devices, shall take necessary and appropriate measures
towards the environmental remediation of areas so contaminated.
3. The obligations under paragraphs 1 and 2 above shall be without prejudice to theduties and obligations of any other States under international law or bilateralagreements.
Article 7:
1. Each State Party shall cooperate with other States Parties to facilitate theimplementation of this Treaty.
2. In fulfilling its obligations under this Treaty, each State Party shall have the rightto seek and receive assistance, where feasible, from other States Parties.
3. Each State Party in a position to do so shall provide technical, material andfinancial assistance to States Parties affected by nuclear-weapons use or testing, tofurther the implementation of this Treaty.
4. Each State Party in a position to do so shall provide assistance for the victims of
the use or testing of nuclear weapons or other nuclear explosive devices.
5. Assistance under this Article may be provided, inter alia, through the United
Nations system, international, regional or national organizations or institutions,29

non-governmental organizations or institutions, the International Committee of the
Red Cross, the International Federation of Red Cross and Red Crescent Societies,
or national Red Cross and Red Crescent Societies, or on a bilateral basis.
6. Without prejudice to any other duty or obligation that it may have underinternational law, a State Party that has used or tested nuclear weapons or any othernuclear explosive devices shall have a responsibility to provide adequate assistanceto affected States Parties, for the purpose of victim assistance and environmental
remediation.

Commentary:
One of the striking features of the Treaty being of practical, political and, also,
legal significance is without doubt the fact that it contains clauses on victim
assistance and environmental remediation. These provisions (Arts. 6 and 7)
express the deeply humanitarian nature and the victim-centred approach of theTreaty and have to be read in light of the long and detailed preamble. 67
Articles 6 and 7 contain positive obligations which are of specific relevance, as
distinct from negative, or banning, stipulations contained in the Treaty.
Implementing these obligations is a priority and has immediate practical effects
for victims and the natural environment affected by the (past) use or testing of
nuclear weapons. Those commitments are of relevance even without the joiningof Nuclear Weapon States (NWS) to the Treaty – thus underlining the great,overall importance of the instrument. According to Article 6, the point of
departure for victim assistance and environmental remediation lies with thejurisdiction of affected States Parties, which may not be NWS.
The commitments echo the concept of humanitarian disarmament 68 which is at
the cornerstones of the Ottawa and Oslo Conventions as well as of Protocol V
67 For a comprehensive commentary on the Treaty and its backgrounds see Casey-Maslen, Stuart(2019), The Treaty on the Prohibition of Nuclear Weapons: A Commentary; on arts. 6 and 7 pp.
207-224.
68 See, among many others, Rapillard, Pascal (2011), Humanitarian Disarmament, In: The Journal
of
ERW
and
Mine
Action,151,
http://www.jmu.edu/cisr/journal/15.1/specialrpt/rapillard/rapillard.shtml (7.10.2017); Docherty,
Bonnie (2013), Ending Civilian Suffering: The Purpose, Provisions, and Promise of Humanitarian30

of the UN Convention on Certain Conventional Weapons. Its essence lies withpursuing a victim-centred approach which is concentrating on practical, or
pragmatic solutions and help for the people negatively affected by nuclear
weapons – human security complementing national security. This is, as para. 6of the Treaty’s preamble has put it, being “…Mindful of the unacceptablesuffering of and harm caused to the victims of the use of nuclear weapons(hibakusha) as well as those affected by the testing of nuclear weapons…”
The environment–related rules of the Treaty are an indication of the generaltendency to deal with the subject of the destruction of the environment throughwar and military activities. Standards taken from the three legal branches
mentioned above, namely human rights, humanitarian and environmental law,
are relevant to these scenarios. This tendency is indicated by various
international endeavours and documents. For example, the International Law
Commission (ILC) has drafted principles on the protection of the environment
in relation to armed conflict (PERAC), which are based on a broadly structured
approach. 69 Other bodies and institutions also are looking into the issue from amore complex angle: the Harvard Law School International Human Rights
Clinic and the Conflict and Environment Observatory (CEOBS) set out aframework of rules covering responsibilities under humanitarian law and makemultiple references to victim assistance in the context of human rights in their2020 paper on conflict pollution. 70 Furthermore, such an approach can be foundin the Guidelines of the International Committee of the Red Cross 71, which deal
Disarmament Law, In: Austrian Review of International and European Law, 15(2013), pp.7-44.;
Dunworth, Treasa (2020), Humanitarian Disarmament: An Historical Enquiry.
69 ILC (2019), Protection of the environment in relation to armed conflicts, A/74/10. Other
examples and indications of this tendency: UNEA (2016), UNEP/EA.2/Res.15; UNEA (2017),
UNEP/EA.3/Res.1.
70 Harvard Law School International Human Rights Clinic & CEOBS (2020), Confronting
Conflict Pollution: Principles for Assisting Victims of Toxic Remnants of War, available at
http://hrp.law.harvard.edu/wp-content/uploads/2020/09/Confronting-Conflict-Pollution.pdf,
accessed on 16/02/2022; see a detailed presentation and commentary in Docherty, Bonnie (2021),
A Singular Opportunity: Setting Standards for Victim Assistance under the Treaty on theProhibition of Nuclear Weapons, in: Global Policy, Vol. 12/1, pp. 126–130.
71 ICRC (2020), Guidelines on the Protection of the Natural Environment in Armed Conflict,availableat31

fundamentally with environment-related issues in the context of armed conflictand stipulate indications of the precautionary principle.
Apart from IHL, another emphasis is on human rights, as Article 6 para. 1
contains the following formulation “accordance with applicable international
humanitarian and human rights law” They form the basis for victim assistanceas well as for environmental remediation, their framework, principles andsubstance. Some of the most relevant human rights in the context of nuclear
weapons are:-the right to life; 72
the right to human dignity (reflected, inter alia, in the prohibition of
torture and inhuman or degrading treatment); 73
the right to information and to a remedy;
the right to health and a decent standard of living, 74 including the rightto food and water, 75 andthe right to a healthy environment (emerging). 76

Whereas the right to life, the right to human dignity, and the right to informationand to a remedy are generally considered “civil” rights, the rest of the mentioned
rights belong to “social and economic” rights, that are equally important inmodern times. It is therefore appropriate and relevant that the TPNW refers inpara. 1 of Article 6 to “social and economic inclusion”.
One should not underestimate the importance of the right to information and toa remedy. Exactly in the case of nuclear weapons victims and damage,https://www.icrc.org/en/download/file/141079/guidelines_on_the_protection_of_the_natural_en
vironment_in_armed_conflict_advance-copy.pdf, accessed on 16/02/2022.
72 Rietiker, Humanization of Arms Control, cited above, pp. 184-190.
73 Ibidem., pp. 191-195.
74 Ibidem., pp. 216-222.
75 See, for instance, Rietiker, The Treaty on the Prohibition of Nuclear Weapons, cited above,
pp. 342-345, Lady Justice Arden, “Water for All?” Developing a Human Right to Water in
National and International Law, International and Comparative Law Quarterly, Vol. 65(4),2016, pp. 771-789, and Murillo Chavarro, The Human Right to Water: A Legal Comparative
Perspective at the International, Regional and Domestic Level, Cambridge University Press,
2015.
76 Rietiker, Humanization of Arms Control, cited above, pp. 212-216.

32

information about the real extent of the actual harm to the environment andhealth of the affected population, as well as the imminent or potential risks ofenvironmental pollution and degradation in future, and access to remedies areof paramount importance. Risk education and public information campaigns
are, as a result, coming into play, as well as dissemination work comparable towhat is done within the IHL/Red Cross.
Article 6 § 1 of the Treaty obliges States Parties to provide to individuals under
their jurisdiction who are affected by the use or testing of nuclear weapons
adequate age- and gender-sensitive assistance (including medical care,rehabilitation, and psychological support). The stipulation is practically
identical with Art. 5 § 1 of the Oslo Convention. Paragraph 2 of Article 6
imposes, again on the territorial State, the duty to take necessary and appropriate
measures towards the environmental remediation of areas contaminated as aresult of activities related to the testing or use of nuclear weapons or othernuclear explosive devices.
One might raise the question whether the phrase “activities related to the testingor use of nuclear weapons”, used in paragraph 2 of Article 6, is broad enoughto embrace activities such as uranium mining and milling, necessary for the
production of nuclear weapons, as well as practices employed in order to get ridof the waste caused by the production or testing of nuclear weapons, such as
dumping into the sea. Experience shows to what great extent those activities
have a disastrous impact on the environment and the local population, inparticular on indigenous peoples. 77
Another principle relevant for implementing Articles 6 and 7 commitments is
worth being mentioned, namely the presumption of causation. Principle 3 of the77 For an overview see: Nuclear Free Future Foundation et al. (2020), Uranium Atlas, especially
pp. 26 –29 dealing with uranium mining and production as well as pp. 42 – 45 dealing with nuclear
waste issues. See also Daniel Rietiker, Indigenous Peoples’ Human Right to Water in the Nuclear
Age: An Assessment of the Protection Under International Law, in: J.L. Black-Branch and D.
Fleck, Nuclear Non-Proliferation in International Law, Vol. VI, The Hague, 2021, pp.155-177,
as well as Katja Göcke, Indigenous Peoples in the Nuclear Age: Uranium Mining on Indigenous’
Lands, in: J.L. Black-Branch and D. Fleck, Nuclear Non-Proliferation in International Law, Vol.
I, The Hague, 2014, pp. 199-223.

33

Harvard/CEOBS paper is defining victims, and states: “…Where a certain
amount and duration of exposure to a toxic or radiological substance is strongly
associated with a particular harm, that exposure should be presumed to be acause of the harm.”
It derives from Article 6 §§ 1 and 2 that the main responsibility for victim
assistance and environmental remediation lies upon the territorial or affectedStates – seeing to be in the best position to do so - thus the States where thetesting or use of nuclear weapons has taken place. This primary burden is
however tempered in several ways. First of all, paragraph 3 recalls that the
obligations of any other State under international law or bilateral agreements
shall remain unaffected. In other words, and to mention just one example, theTreaty would be without prejudice to the reparation that the USA owes to the
Marshall Islands based on the “Compact of Free Association” Agreement
between the USA and the Marshall Islands concluded in 1983. 78 So here,
especially via the general clause of “international law”, (again) reference ismade to existing legal obligations outside the Treaty and Treaty membership.
The Marshall Islands case is a predominant example of the relevance of humanrights law and procedure as the UN Special Rapporteur on human rights andhazardous waste conducted a fact-finding mission there in 2012, 79 while thecase failed against NWS at the ICJ in 2016. 80
Article 6 of the TPNW has to be read in conjunction with Article 7: the burden
imposed on the States on whose territory the use or testing of nuclear weapons
78 The Compact of Free Association, US-Marsh. Is., June 25, 1983, 99 Stat. 1770 (1986).

79 UN OHCHR (2012), A/HRC/21/48/Add.1, especially paras. 19 – 35, referring to the impact on

the enjoyment of human rights, esp. the right to health.
For a case overview see: Marshall Islands v. United Kingdom (2014), available athttps://www.icj-cij.org/en/case/160, accessed on 16/02/2022; for (critical) comments: IALANA(2016), Statement on the Dismissal of the Marshall Islands’ Nuclear Disarmament Case, available
atwww.ialana.de/arbeitsfelder/abc-waffen/atomwaffen-sperrvertrag/abruestungatomwaffen/klagen-der-marshall-inseln-vor-dem-igh/1807-the-international-association-oflawyers-against-nuclear-arms-ialana-on-the-dismissal-of-the-marshall-islands-nucleardisarmament-cases, accessed on 16/02/2022.; de Souza Schmitz, Maite (2016), Decision of theInternational Court of Justice in the Nuclear Arms Race Case, In: Harvard International Law
Journal Online, available at https://harvardilj.org/2016/11/decision-of-the-international-court-ofjustice-in-the-nuclear-arms-race-case/, accessed on 16/02/2022.
80

34

has taken place is tempered by clauses on international cooperation andassistance. Paragraphs 1 and 2 of Article 7 represent general cooperation andassistance measures, not limited to victim assistance and environmental
remediation. The duty to cooperate, as a legal obligation, is a well-recognizedprinciple of international law, as enshrined in Article 1 para. 3 of the UN
Charter.
Article 7 paragraph 3 is tailored to victim assistance and environmental
remediation, imposing on “each State Party in a position to do so” the duty toprovide technical, material and financial assistance to States Parties affected by
the use or testing of nuclear weapons. Paragraph 4 is even more specific in thesense as it imposes the duty on “each State Party in a position to do so” toprovide assistance for the victims of the use or testing of nuclear weapons.
These rules correspond to similar rules contained in other instruments ofhumanitarian disarmament which sometimes are more detailed but, again, it
matters to have them in the nuclear weapons context. This also applies to thementioning of organizational schemes of assistance (including the UN and the
Red Cross) in paragraph 5.
In one respect, the new treaty even goes further insofar as paragraph 6 of Article
7 recalls that a State Party that has used or tested nuclear weapons or any othernuclear explosive devices shall have a responsibility to provide adequate
assistance to affected States Parties, for the purpose of victim assistance andenvironmental remediation without affecting any other duty or obligation that it
may have under international law. 81 The first half sentence refers back to themultifaceted framework of international legal rules and standards in existence
independent of the Treaty.
Such a responsibility, in essence, is of a legal not only a moral, nature. It
emanates both from prevailing international law and the Treaty itself, underwhich it – operationally – may be replaced by the cooperation schemes of other81 See (also) Singh, op. cit., pp. 271, 278. On (assumed) drawbacks of para. 6 see Casey-Maslen,

op.cit., p. 224.

35

States Parties, in line with Article 7. Consequently, again, the Treaty may befunctioning even without NWS membership.
It is interesting to note that in General Comment no. 36 of the Human Rights
Committee on the right to life, the Committee overseeing the implementationof the International Covenant on Civil and Political Rights (ICCPR) demands
States Parties “…to afford adequate reparation to victims whose right to life has
been or is being adversely affected by the testing or use of weapons of mass
destruction”, in particular nuclear weapons (Para. 66). This has to be done “inaccordance with principles of international responsibility”. 82
It is worth mentioning, in this regard, that all States that are recognized as
possessing nuclear weapons under the NPT are Parties to the ICCPR, with the
exception of China, that has at least signed it.
The meeting of States Parties prescribed in Article 8 may further specify whatvictim assistance and environmental remediation under the Treaty really means– possibly following the example of a list of concrete measures as contained inArt. 5 § 2 of the Oslo Convention. Also, Harvard Principle 5 on “Types ofVictim Assistance” is of an instructive nature. At any rate, Docherty is right instressing that the needs of victims should be at the centre thus their humanrights. 83
There still has to be developed a fully-fledged implementation system under theTreaty. This might centre around a reporting procedure, for which an abundanceof examples exists within international treaty law, in particular the area of
human rights law. On the other hand, implementation and reporting systems ofexisting international law branches, especially those of human rights, remain
relevant and should be used in parallel to secure the implementation andapplication of the Treaty’s commitments. The new treaty mechanism has to be
82 UN OHCHR Human Rights Committee (2018), CCPR/C/GC/36, para. 66.

83 Docherty, A Singular Opportunity, op. cit., p. 127. For an overview of possible steps andregulations to be taken by the States Parties Meeting on Arts. 6 and 7, including an action plan,
see Docherty, Bonnie (2020), From Obligation to Action: Advancing Victim Assistance andEnvironmental Remediation at the First Meeting of States Parties to the Treaty on the Prohibitionof Nuclear Weapons, In: Journal for Peace and Nuclear Disarmament 2020, Vol. 3, No. 2, pp.
253-264.

36

considered complementary to existing human rights procedures and bodies, andnot contradictory or exclusive.
Meeting of States Parties (Article 8)Treaty text:
1. The States Parties shall meet regularly in order to consider and, where necessary,take decisions in respect of any matter with regard to the application or
implementation of this Treaty, in accordance with its relevant provisions, and on
further measures for nuclear disarmament, including:(a) The implementation and status of this Treaty;(b) Measures for the verified, time-bound and irreversible elimination of nuclearweapon programmes, including additional protocols to this Treaty;(c) Any other matters pursuant to and consistent with the provisions of thisTreaty.
2. The first meeting of States Parties shall be convened by the Secretary-General of
the United Nations within one year of the entry into force of this Treaty. Further
meetings of States Parties shall be convened by the Secretary-General of the United
Nations on a biennial basis, unless otherwise agreed by the States Parties. The
meeting of States Parties shall adopt its rules of procedure at its first session.
Pending their adoption, the rules of procedure of the United Nations conference tonegotiate a legally binding instrument to prohibit nuclear weapons, leading towards
their total elimination, shall apply.
3. Extraordinary meetings of States Parties shall be convened, as may be deemednecessary, by the Secretary-General of the United Nations, at the written request of
any State Party provided that this request is supported by at least one third of theStates Parties.
4. After a period of five years following the entry into force of this Treaty, theSecretary-General of the United Nations shall convene a conference to review theoperation of the Treaty and the progress in achieving the purposes of the Treaty.
The Secretary-General of the United Nations shall convene further review
conferences at intervals of six years with the same objective, unless otherwise
agreed by the States Parties.
37

5. States not party to this Treaty, as well as the relevant entities of the United
Nations system, other relevant international organizations or institutions, regionalorganizations, the International Committee of the Red Cross, the International
Federation of Red Cross and Red Crescent Societies and relevant non-governmentalorganizations, shall be invited to attend the meetings of States Parties and the review
conferences as observers.

Commentary:
As mentioned above, 84 the TPNW also resembles much the Ottawa and the Oslo
Conventions regarding the institutional framework, which have not establisheda permanent body verifying the implementing of the duties deriving from the
instrument, contrary, in particular to the CWC and the CTBT, which are bothsupported by international organizations, namely the Organization for theProhibition of Chemical Weapons (OPCW) and the Preparatory Commission
for the Comprehensive Nuclear-Test-Ban Treaty Organization.
Article 8 establishes Meetings of States Parties that shall be held on a regularbasis, as in the case of the Ottawa and Oslo Conventions. 85 The first meetingshall be convened by the UN Secretary General within one year of the entry into
force of the treaty, followed by further meetings convened on a biennial basis. 86
The aim of those meetings is to discuss and, where necessary, to take decisions
in respect of any matter with regard to the application or implementation of thetreaty, including measures for the verified, time-bound and irreversible
elimination of nuclear-weapon programmes in accordance with Article 4 of thetreaty. 87 The assembly of States Parties is the right and competent forum tofurther shape the details of the treaty’s substance – just in view of its flexibility
and openness.

84 See above, « Declarations » (Article 2) and « Safeguards » (Article 3).

85 Article 11 of both Conventions; See Casey-Maslen, S. (2019), The Treaty on The Prohibitionof Nuclear Weapons, Oxford University Press, pp. 227-230.
86 Article 8 § 2; The First meeting will be held on 21 to 23 June 2022 in Vienna, Austria. See
https://meetings.unoda.org/meeting/tpnw-msp-1-2022/, accessed on 03/05/2022. Two NATOcountries (Germany and Norway) attend the Meeting as observers possibly indicating a shift
towards a more positive and constructive attitude to the Treaty.
87 Article 8 § 1.

38

Paragraph 2 of Article 8 stipulates that the Meeting of States Parties will adopt
its own rules of procedure and, pending their adoption, the rules of procedure
applicable to the conference leading to the adoption of the new treaty willremain applicable mutatis mutandis.
Article 8 of the treaty also addresses the possibility of extraordinary meetingsof States Parties and establishes Review Conferences convened by the UN
Secretary General at intervals of six years (Art 8(4)) with a view to assess theoperation of the treaty and progress in achieving the purposes of the new
instrument. 88 The latter mechanism is inspired by Article VIII § 3 of the NPT,
as well as by the Ottawa and Oslo Conventions which hold Review Conferencesat the same intervals. 89
Finally, paragraph 5 mentions the actors that will be authorized to participate inthose meetings as observers, including relevant non-governmentalorganizations, which confirms the democratic, open and transparent nature of
the future meetings. 90

Costs (Article 9)Treaty text:
1. The costs of the meetings of States Parties, the review conferences and theextraordinary meetings of States Parties shall be borne by the States Parties andStates not party to this Treaty participating therein as observers, in accordance with
the United Nations scale of assessment adjusted appropriately.
2. The costs incurred by the Secretary-General of the United Nations in thecirculation of declarations under Article 2, reports under Article 4 and proposed
amendments under Article 10 of this Treaty shall be borne by the States Parties inaccordance with the United Nations scale of assessment adjusted appropriately.
88 Article 8 §§ 2 and 3.

89 Article 12 of the Ottawa and Oslo Conventions.

90 See already Article 11 § 4 and 12 § 3 of the Ottawa Convention and Article 11 § 3 and 12 § 3of the Oslo Convention; Regarding the information on the TPNW meeting for civil society, see
www.icanw.org/tpnw_first_meeting_of_states_parties, accessed on 16/02/2022.

39

3. The cost related to the implementation of verification measures required under
Article 4 as well as the costs related to the destruction of nuclear weapons or othernuclear explosive devices, and the elimination of nuclear-weapon programmes,
including the elimination or conversion of all nuclear-weapons-related facilities,
should be borne by the States Parties to which they apply.

Commentary:
Article 9 addresses the question of whom shall bear the costs incurred by thedifferent meetings and certain tasks undertaken by the UN Secretary General. 91
Its paragraph 3 clarifies that the costs related to destruction of nuclear weapons
and the elimination of nuclear weapons programmes, including the verification
measures required under Article 4, have to be borne by the States Parties
concerned.

Amendments (Article 10)
Treaty text:
1. At any time after the entry into force of this Treaty, any State Party may propose
amendments to the Treaty. The text of a proposed amendment shall be
communicated to the Secretary-General of the United Nations, who shall circulate
it to all States Parties and shall seek their views on whether to consider the proposal.
If a majority of the States Parties notify the Secretary-General of the United Nations
no later than 90 days after its circulation that they support further consideration of
the proposal, the proposal shall be considered at the next meeting of States Partiesor review conference, whichever comes first.
2. A meeting of States Parties or a review conference may agree upon amendments
which shall be adopted by a positive vote of a majority of two thirds of the States
Parties. The Depositary shall communicate any adopted amendment to all States
Parties.
3. The amendment shall enter into force for each State Party that deposits its
instrument of ratification or acceptance of the amendment 90 days following the
91 See also Article 14 of the Ottawa and Oslo Conventions.

40

deposit of such instruments of ratification or acceptance by a majority of the States
Parties at the time of adoption. Thereafter, it shall enter into force for any otherState Party 90 days following the deposit of its instrument of ratification or
acceptance of the amendment.

Commentary:
Article 10 addresses the question whether and under what conditions the treaty
can be amended after its entry into force. Even though most of the arms control
treaties contain such clauses, formal amendments based on these clauses haveremained very rare, most probably due to practical and legal problems that the
adoption of an amendment could raise. In fact, since no State Party can be forced
to accept an amendment, even if a large majority has voted in its favour, there
would be two parallel legal regimes applicable, namely the modified treaty
binding the States having accepted the amendment, on the one hand, and theoriginal treaty applying to the States not having accepted the amendment, on
the other hand. Even though this is the solution proposed by generalinternational law, namely Article 40 § 4 of the VCLT, it might lead to similardifficulties encountered with reservations to a treaty and would be likely toundermine legal certainty.
Article 10 of the new treaty is inspired by Article 13 of the Ottawa and Oslo
Conventions, with the difference that an amendment of the TPNW could bevoted upon within a Meeting of States Parties or Review Conference while theOttawa and Oslo Conventions would have to be amended within a special
Amendment Conference.

Settlement of disputes (Article 11)
Treaty text:
1. When a dispute arises between two or more States Parties relating to theinterpretation or application of this Treaty, the parties concerned shall consult
together with a view to the settlement of the dispute by negotiation or by other41

peaceful means of the parties’ choice in accordance with Article 33 of the Charterof the United Nations.
2. The meeting of States Parties may contribute to the settlement of the dispute,
including by offering its good offices, calling upon the States Parties concerned tostart the settlement procedure of their choice and recommending a time limit for
any agreed procedure, in accordance with the relevant provisions of this Treaty andthe Charter of the United Nations.

Commentary:
The peaceful settlement of international disputes is the corollary of theprohibition of use or threat of force in international relations and, as such,enshrined as a principle of the UN Charter. 92 Whereas Chapter VII of theCharter applies to situations where peace is threatened or already breached,including acts of aggression, and allows certain exceptions to the prohibition ofuse and threat of force, Chapter VI suggests a series of means how to settle a
dispute peacefully before military action can be taken.
Most of the arms control treaties, relating to nuclear weapons or not, include aclause on how to proceed in a situation where a dispute about the interpretation
or application of the treaty occurs between States Parties. Paragraph 1 of Article
11 is classical and follows international law in the sense that, first of all, it
reiterates the principle that the Parties to a dispute have the choice by whatmeans they want to settle it; second it mentions negotiations as primary meansof dispute settlement and, third, it refers to Article 33 of the UN Charter thatenumerates the most common means of dispute settlement. 93
Article 11 is inspired by Article 10 of the Ottawa and Oslo Conventions, withthe exception that the ICJ is not mentioned explicitly as a possible means ofdispute resolution in paragraph 1. Resort to the ICJ is nevertheless possible if
the States Parties agree spontaneously to submit a dispute to this court in

92 Article 2 § 3 of the UN Charter.

93 Article 33 § 1 reads as follows: “The parties to any dispute, the continuance of which is likely

to endanger the maintenance of international peace and security, shall, first of all, seek a solution
by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice.”42

accordance with its statute or in case those States Parties have already accepted
the jurisdiction of the ICJ in abstracto for future cases. 94
Noteworthy is also paragraph 2 of Article 11, following the relevant provisionsof the Ottawa and Oslo Conventions, 95 proposing the Meeting of the States
Parties to play an active role in the friendly settlement of a dispute, in particular,
by offering its good offices.

Universality (Article 12)
Treaty text:
Each State Party shall encourage States not party to this Treaty to sign, ratify,
accept, approve or accede to the Treaty, with the goal of universal adherence of all
States to the Treaty.

Commentary:
A useful and uncontroversial clause is Article 12, containing the duty of States
Parties to encourage States not party to this treaty to sign and join the treaty,
with the goal of universal adherence of all States to the treaty. Such a clause
was already inserted in the Oslo Convention. 96 From our point of view, it showsthat the norms embedded in the treaty are of common interest to humanity andthus, of erga omnes nature. 97 It is obvious that, considering the norm-building
94 Article 36 §§ 1 and 2of the Statute of the ICJ. The Marshall Island Case against UK decided by

the Court in 2016 is an illustration of the latter provision (Obligations Concerning Negotiations
Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, ICJ Report 2016).
95 Article 10 § 2 of the Ottawa and Oslo Conventions.
96 Article 21 § 1 of the Oslo Convention.
97 See the case of Barcelona Traction (Second Phase), Belgium v. Spain, ICJ Reports 1970, §§33 and 34: “In particular, an essential distinction should be drawn between the obligations of astate towards the international community as a whole, and those arising vis-à-vis another State in
the field of diplomatic protection. By their very nature the former are the concern of all States. Inview of the importance of the rights involved, all States can be held to have a legal interest in
their protection; they are obligations erga omens. 34. Such obligations derive, for example, incontemporary international law, from the outlawing of acts of aggression, and of genocide, asalso from the principles and rules concerning the basic rights of human person, including
protection from slavery and racial discrimination.”43

nature, the more States will ratify and comply with the treaty, the more likely
the prohibitions deriving from the treaty will have a customary nature too. 98 At
the moment of completing the update of the present commentary, 59 States have
ratified the TPNW – in other words, we are still far from universal adherence tothe treaty. 99
On the other hand, the norm-building effect of the treaty does not necessarily
depend on the number of ratifications, according to the International Court ofJustice (ICJ), the “States whose interests are specially affected” 100 must
participate in the practice to create such a norm. From our point of view, it
would be too easy to argue that the particularly interested States are necessarily
the States possessing nuclear weapons. 101 On the contrary, it may be argued that
States not possessing nuclear weapons have a particular interest in creating therule because their populations have been facing the risk and threat of nuclear
weapons for decades to date. 102 In addition, it is also interesting to mention thatthe draft conclusions adopted by the International Law Commission (ILA)
concerning the identification of customary international law, which was
welcomed and taken note by the UN General Assembly afterward, do not referto the requirement of “States whose interests are specifically affected,” 103

98 See also above, “Prohibitions” (Article 1).

99 See the list of States in the introduction, above.
100 North

Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands),
Judgment, 1969 I.C.J. Rep. 3 (Feb. 20, 1969), § 74.
101 Rietiker, New hope for Nuclear Disarmament or “Much Ado About Nothing”? cited above.
102 Ibidem. See in this sense the dissenting opinion of Judge Shahabuddeen in the 1996 Advisory
Opinion of the ICJ on the Legality of the Threat or Use of Nuclear Weapons: “Where what is in
issue is the lawfulness of the use of a weapon which could annihilate mankind and so destroy all
States, the test of which States are specially affected turns not on the ownership of the weapon,
but on the consequences of its use. From this point of view, all states are equally affected, for,like the people who inhabit them, they all have an equal right to exist” (ICJ Reports 1996, p. 226,
at ¶ 414). See also Maya Brehm, Whose Security is it Anyway? Towards a Treaty Prohibition of
Nuclear Weapons, EUR. J. INT’L L. BLOG (May 31, 2016), available atwww.ejiltalk.org/whose-security-is-it-anyway-towards-a-treaty-prohibition-of-nuclearweapons/, accessed on 16/02/2022.
103 See UNGA resolution 73/203 and Annex, adopted on 20 December 2018 .

44contrary to what had initially been proposed by the Special Rapporteur, Michael
Wood. 104
Already the ICJ in its 1996 Advisory Opinion came across the issue whether theprohibition of the use or threat of use of nuclear weapons forms part ofinternational customary law. The Court just stated a “nascent opinio juris” inthis regard – which, of course is further developed by the adoption of the
TPNW, in particular by more and more States acceding to it. The Court then(and therefore) turned to the issue of illegality of the use of nuclear weapons
under international humanitarian law. A great part of rules of international
humanitarian law, which are also repeated in the treaty, 105 can be characterized
as customary law, mirroring “…the most universally recognized humanitarianprinciples”. 106

Signature (Article 13)
Treaty text:
This Treaty shall be open for signature to all States at United Nations
Headquarters in New York as from 20 September 2017.

Commentary:
According to Article 13, the TPNW was open to signature by all States, from20 September 2017. This is more a symbolic choice and less a pragmatic one.
In fact, each year, on that date the day of the total elimination of nuclear
weapons is celebrated.
Interestingly, and contrary to prior arms control treaties, including the Ottawa
and Oslo Convention or the ATT, 107 the signature seems not to be limited until
104 See Int’l Law Comm’n Rep. on the Work of its Sixty-Sixth Session, U.N. Doc. A/CN.4/672,

at §§ 54-59 (2014).
105 See in particular preamble, § 9.
106 (See) Advisory Opinion, op. cit., §§ 73, 74, 82. Emphasis added.
107 Article 21 § 1 ATT.

45

the entry into force of the treaty. In the new treaty, once the treaty has gathered
the necessary ratifications for entry into force (50), States not yet Party to thetreaty will either be able to accede directly to the treaty, or, if they are hesitantor have to go through a national approbation procedure, still be able to sign thetreaty first, followed by ratification. That latter choice is not possible in treaties
not providing for signature after entry into force of the treaty. At the time ofwriting this commentary, there are 86 signatories and 56 ratifications of the
TPNW and, thus, it entered into force from 22 January 2021. 108
Moreover, it is appropriate to recall that signature of the treaty does not meanthat the State is already bound by the provisions of the treaty, but a signatory
State is already prevented from running counter the object and purpose of thetreaty (“refrain from acts which would defeat the object and purpose of atreaty”) until it shall have made its intention clear not to become a party to thetreaty in accordance with Article 18 a) VCLT. A State that has expressed its
consent to be bound by the treaty by means other than signature plus ratificationis also under the same obligation, pending the entry into force of the treaty andprovided that such entry into force is not unduly delayed, in accordance with
Article 18 b) VCLT.
The question deserves being raised which categories of States, apart from States
not possessing nuclear weapons, could sign the treaty without violating its
object and purpose? For instance, what about a State not possessing its own
nuclear weapons but cooperating militarily with NWS, for instance within
NATO, or hosting nuclear weapons on its territory? Could it sign the treaty
without running counter to its object and purpose within the meaning of Article
18 VCLT? For practical reasons, it is not the intention of the authors to reply
exhaustively to this complex question here, but it seems to us that such a
scenario is not per se excluded from a legal point of view, in particularconsidering, first of all, that the concept of “object and purpose” is flexible andnarrower than the general obligations deriving from a treaty; second, that theterms “refrain from acts” suggests positive acts and not a mere membership ofa military coalition or tolerance of the presence of nuclear weapons in its
108 See https://treaties.unoda.org/t/tpnw, accessed on 16/02/2022.

46

territory; third, that the treaty itself promotes universality (Article 12); fourth,that the treaty itself allows States hosting foreign nuclear weapons to join thetreaty (Article 4 § 4), and finally, that the ultimate goal of the treaty lies in the
total elimination of nuclear weapons and, as a result, the impossibility of theiruse. All these points might suggest that NATO members should not only beallowed and encouraged to sign the treaty but, once having done their
homework in compliance with the treaty and ratified it, could even play animportant role as “ice-breakers” or mediators in nuclear disarmament mattersvis-à-vis NWS.

Ratification, acceptance, approval or accession (Article 14)
Treaty text:
This Treaty shall be subject to ratification, acceptance or approval by signatory
States. The Treaty shall be open for accession.

Commentary:
Article 14 contains a clause that is typical for arms control treaties, according
to which signatory States can ratify, accept and approve the treaty before entry
into force of the treaty, and after its entry into force, other States can accede to
the treaty. Those are all different forms of the expression of the consent of States
to be bound by the treaty. 109 This clause follows what it is suggested by generalinternational law. 110

109 Article 2 § 1 b) VCLT defines those expressions as “international acts so named whereby aState established on the international plane its consent to be bound by a treaty”.
110 See, in particular, Article 14 VCLT.

47

Entry into force (Article 15)
Treaty text:
1. This Treaty shall enter into force 90 days after the fiftieth instrument of
ratification, acceptance, approval or accession has been deposited.
2. For any State that deposits its instrument of ratification, acceptance, approval oraccession after the date of the deposit of the fiftieth instrument of ratification,
acceptance, approval or accession, this Treaty shall enter into force 90 days after
the date on which that State has deposited its instrument of ratification, acceptance,
approval or accession.

Commentary:
The entry into force is the moment where a treaty unfolds its legal effects and,to a certain extent and where the treaty is self-executing, on individuals andlegal entities. 111 The 90 days period contained in paragraph 1 of Article 15 isusual and aims at allowing the States having ratified the treaty to prepare for its
actual entry into force.
As mentioned above, the TPNW entered into force on 22 January 2021, 90 days
after the ratification by the 50th State, Honduras, on 24 October 2020, in
accordance with its Article 15 § 1.
Regarding the required number of ratifications, there are differences amongarms control treaties, but the objective is always to strike a balance between acertain number required in order to reach the norm-building aim of the treaty,on the one hand, and a number that would not render the entry into force too
difficult and illusionary, on the other hand. From the outset, the number of 50
ratifications required in the new treaty seems appropriate and, having regard to
the broad support of the treaty, fairly easy to reach. It is noteworthy to stressthat the negotiating States did not commit the same mistake as in the CTBT,
where a very complex and demanding entry-into-force clause has been inserted

111 See above, “National implementation” (Article 5).

48

allowing a certain group of States to prevent entry into force, after more than 20
years after its adoption and in spite of more than 180 ratifications. 112

Reservations (Article 16)
Treaty text:
The Articles of this Treaty shall not be subject to reservations.

Commentary:
Reservations are defined by the VCLT as “unilateral statement, howeverphrased or named, made by a State, when signing, ratifying, accepting,approving or acceding to a treaty, whereby its purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to that
State.” 113 Their aim is to allow a certain flexibility and to increase the numberof ratifications, in the sense that certain States might more easily join a treaty ifthey are allowed to exclude or modify certain clauses on their behalf.
In spite of these advantages, reservations to multilateral treaties raise very
complex questions and can impact negatively on the integrality of treaties andlegal certainty, similar to amendments to treaties, as explained above. 114
Therefore, Article 16 seems to be an appropriate solution, in particular for anorm-building instrument aiming at banning nuclear weapons for always,
insofar as it categorically excludes all types of reservations, and is clearly inline with the recent trend in arms control treaties, with the exception of the ATT,
which follows general international law, allowing reservations as long as they
are not contrary to the object and purpose of the treaty. 115

112 Article XIV § 1 of the CTBT, which gives a “right to veto” to the States listed in Annex 2 to

the Treaty. Several States listed there, including the USA, have not yet ratified the CTBT.
113 Article 2 § 1 d) VCLT.
114 The subsidiary regime proposed by Articles 19-23 of the VCLT is not considered a satisfactory
answer to this difficult topic.
115 Article 25 § 1 ATT, embracing the solution proposed in Article 19 c) of the VCLT.

49

Duration and withdrawal (Article 17)
Treaty text:
1. This Treaty shall be of unlimited duration.
2. Each State Party shall, in exercising its national sovereignty, have the right towithdraw from this Treaty if it decides that extraordinary events related to thesubject matter of the Treaty have jeopardized the supreme interests of its country.
It shall give notice of such withdrawal to the Depositary. Such notice shall include
a statement of the extraordinary events that it regards as having jeopardized its
supreme interests.
3. Such withdrawal shall only take effect 12 months after the date of the receipt of
the notification of withdrawal by the Depositary. If, however, on the expiry of that
12-month period, the withdrawing State Party is a party to an armed conflict, theState 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.

Commentary:
An important and controversial provision is contained in Article 17, namely theclause on duration and withdrawal. While civil society and certain States wereagainst the inclusion of a clause permitting withdrawal or were in favour of aclause simply referring to the rules of the 1969 VCLT, the majority viewfavoured a clause that represents a compromise between arms control treaties
and humanitarian law treaties.
While paragraph 1 of Article 17, stating that the treaty is concluded for anindefinite period of time, is well-established and not controversial, paragraph 2
reflects a typical clause inserted in arms control treaties, allowing a State towithdraw from the treaty under certain conditions, namely “if it decides thatextraordinary events related to the subject matter of the Treaty have jeopardized
the supreme interests of its country.” Even if this clause seems very broad, it
has been invoked only very rarely within other treaties. 116
See also: https://safna.org/2017/03/22/withdrawal-clauses-in-arms-control-treaties-somereflections-about-a-future-treaty-prohibiting-nuclear-weapons/, accessed on 16/02/2022.

116

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Paragraph 3, on the other hand, reflects the logic of humanitarian law of thetreaty by ensuring that a withdrawal does not take effect until the end of
hostilities if the State intending to withdraw is engaged in an armed conflict. 117
Moreover, we are of the opinion that it would have been appropriate to insert aclause such as Article XVI, § 3 CWC, recalling that“the withdrawal of a State Party from this Convention shall not any way
affect the duty of States to continue fulfilling the obligations assumed
under any relevant rules of international law, particularly the Geneva
Protocol of 1925.”

In spite of the fact that this principle follows already from international law, inparticular Article 43 of the VCLT, such a reminder would have had some added
value. Assuming that the use of nuclear weapons is today already prohibited bycustomary international law or at least will be prohibited after the ratificationand implementation by many States, such use would remain prohibited to a
State even if it decides to withdraw from the treaty.

Relationship with other agreements (Article 18)
Treaty text:
The implementation of this Treaty shall not prejudice obligations undertaken by
States Parties with regard to existing international agreements, to which they are
party, where those obligations are consistent with the Treaty.

Commentary:
This clause is inspired by Article 26 of the Arms Trade Treaty (ATT) and gives
priority of the new treaty over existing treaties in case they are conflicting, what
derives from its controversial first sub-paragraph. 118 For this reason, certain
delegations were opposed to the inclusion of this Article and had difficulties to
117 See, for instance, Article 63 § 3 of Geneva Convention No. 1.

118 See Casey-Maslen, S. (2019), The Treaty on The Prohibition of Nuclear Weapons, Oxford

University Press, pp. 257-258.

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vote in favour of the treaty altogether. 119 This solution seems neverthelesscompatible with general international law, in particular Article 30 §§ 3 and 4 of
the VCLT. 120
From the outset, and judging from the negotiations in New York, potential
conflicts could arise, in particular, between the new treaty and the CTBT or the
NPT. 121 For practical reasons, the present commentary will only mention one
example of a potential interpretation issue: whereas the new treaty refers tonuclear “test” very generally, without defining this expression, the CTBT
prohibits “any nuclear weapon test explosion or any other nuclear explosion” in
its Article 1 § 1. In other words, nuclear weapon tests not involving an
explosion, such as sub-critical tests and computer-simulated tests, would fallunder the new treaty but not under the CTBT.
This controversy raises the question whether it would not have been worth todefine the most important expressions, as has been done in earlier arms control
treaties, 122 at least by referring to already existing treaties.

Depository (Article 19)
Treaty text:
The Secretary-General of the United Nations is hereby designated as the Depositaryof this Treaty.

Commentary:
It is usual for arms control treaties to designate the UN Secretary General as
depositary of the instruments. Its functions are defined by the States Parties and,
119 See, in particular, Switzerland.

120 Article 30 §§ 3 and 4 a) VCLT enshrine the principle lex posterior derogat legi priori.

121 See, for an author who does not see a necessary conflict between the new treaty and the NPT,

Stuart Maslen, The Relationship of the 2017 Treaty on the Prohibition of Nuclear Weapons withother Agreements: Ambiguity, Complementarity, or Conflict? EUR. J. INT’L L. BLOG (August
1, 2017).
122 See, for instance, Article 2 of the Ottawa and Oslo Conventions.

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subsidiary, by Article 77 of the VCLT. Depositories are typically responsible,
inter alia, for keeping custody of the original text of the treaty, receiving any
signature or instruments of ratification by States and forwarding them to theother States Parties.

Authentic texts (Article 20)
Treaty text:
The Arabic, Chinese, English, French, Russian and Spanish texts of this Treaty shallbe equally authentic.

Commentary:
Article 20 defines the authentic texts, which are the six official languages of theUnited Nations. This has above all one main legal significance, even thoughrare in practice, namely that, in case of a difference between the different
authentic texts, Article 33 of the VCLT applies that proposes a set of rules
aiming at resolving a problem arising out of a treaty authenticated in different
languages.

53Annex: 1969 Vienna Convention on the Law of Treaties (Articles 31-33)
Article 31: General rule of interpretation
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 lightof its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise,in addition to the text, including its preamble and annexes:(a) any agreement relating to the treaty which was made between all theparties in connection with the conclusion of the treaty;(b) any instrument which was made by one or more parties in connection withthe conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.

3. There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretationof the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;(c) any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties
so intended.
Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order54

to confirm the meaning resulting from the application of article 31, or todetermine the meaning when the interpretation according to article 31:(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable.

Article 33: Interpretation of treaties authenticated in two or morelanguages
1. When a treaty has been authenticated in two or more languages, the text is
equally authoritative in each language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text
was authenticated shall be considered an authentic text only if the treaty soprovides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in eachauthentic text.
4. Except where a particular text prevails in accordance with paragraph 1, whena comparison of the authentic texts discloses a difference of meaning which theapplication of articles 31 and 32 does not remove, the meaning which bestreconciles the texts, having regard to the object and purpose of the treaty, shallbe adopted.

55

Authors
Dr. iur. Daniel Rietiker
Graduated from Zurich University, Master ininternational relations (Geneva Graduate Institute) andPhD (Lausanne University); International law lecturer
at Lausanne University; Adjunct Professor at Suffolk
University Law School (Boston MA); Visiting fellow
at Harvard Law School (2014); President of Swiss
Lawyers for Nuclear Disarmament (SLND) and copresident of IALANA.
Prof. Dr. iur. Manfred Mohr
Born 1948, graduated from Humboldt University
Berlin, Professor of Public International Law(Academy of Sciences, Berlin); holding various
academic, research and expert positions; working for
the German Red Cross in different functions; founding
and board member of IALANA (Int./Germany);
spokesperson ICBUW (Int. Coalition to Ban Uranium
Weapons).
Prof. Toshinori Yamada

Born 1965, Master in Laws (Soka University, Japan),and accomplished credits for doctoral program(Graduate School of Law, Meiji University); lecturerof International Law, School of Law, Meiji University;senior researcher, the Institute of Politics andEconomy; board member of IALANA and JALANA.

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Acknowledgement:
The authors thank Tsubasa Shinohara, Pauline Pautz, Ilia Kukin and Lucas
Wirl for their contributions to the realization of this brochure.

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Imprint
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(IALANA)
Marienstraße 19/20
10117 Berlin
Germany
www.ialana.info
Contact
E-mail: mail@ialana.info / info@safna.org

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