1

Total Elimination of Nuclear Weapons Goal
and the TPNW:
Possible Impact that the TPNW Can Have in Relation to the NPTINOUE, Naoko(Junior Student Yoon Seminar)I

Introduction

II

Movement to legislate nuclear power and the adoption of the NPT

III

Understanding of nuclear weapons for military purpose now

IVMovement to create the TPNWV

Treaty on the Prohibition of Nuclear Weapons

VI

Theoretical impact of a treaty based on its wordingVII

Difficulties when making the treaty in force

VIII	How the TPNW can impact the use of nuclear weapons by states that alreadypossess them
IX

Conclusion

I Introduction
Because of the increasing development of nuclear weapons in the internationalsociety, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was adopted
in 1963.1） It codified three important elements: prevention of nuclear weapons
proliferation, peaceful uses of nuclear energy, and nuclear weapons disarmament,with the ultimate goal of the elimination of nuclear weapons. However, even after
the adoption of the NPT, the disarmament of nuclear weapons was stalled. With thisfear, approaches from humanitarian perspectives were introduced, and the treaty
going beyond proliferation and prohibiting the use of nuclear weapon – the Treaty

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on the Prohibition of Nuclear Weapons (TPNW)– was concluded.2）
Currently, the TPNW is not yet in force, requiring fifty individual ratifications
from states to be enacted. Not only this, nuclear weapons are not prohibited in acomprehensive and universal manner. Having this situation, it is questionable how
the TPNW can influence the current landscape of nuclear weapons.
This paper first investigates the status quo of the international agreement
regarding nuclear weapons by looking into the content of the NPT. Then, it goes on
to examine the legality of nuclear weapons, which eventually leads to the creationof the TPNW. By exploring its content, three questions will be answered: what
impact the TPNW will have towards the elimination goal, what the difficulties of its
enforcement would be, and how it would affect the use of nuclear weapons by statesthat already possess them. Exploring the challenging environment where certain
states are reluctant to agree with the TPNW and where there is a lack of concrete
enforcement measures, this paper finds it difficult to make the TPNW provisions be
actually implemented. In the end, after careful consideration of the reactions fromdifferent countries toward the treaty, the paper concludes that the TPNW reaffirms
the ultimate goal of nuclear weapons elimination to the international society despite
the limited impact it has on states to change their conducts in practice.

II Movement to legislate nuclear power and the adoption of the NPT
In 1945, the very first and only example of nuclear bomb attack was conductedin Hiroshima and Nagasaki, Japan, causing more than 230,000 fatalities, 3） mostof whom were civilians.4） However, even after these horrible incidents, nuclear
development kept advancing, including those for military purpose, backed up by
the Cold War confrontation. The change in this attitude was triggered by the Cuban
Missile Crisis, when the tension escalated to the brink of a full scale nuclear war.5）
Agreeing that having more nuclear-weapon states would endanger the international
security and multiply the risks of unauthorized use of nuclear weapons or conflict,the confrontation with nuclear power relaxed.
In December 1953, at the eighth session of the United Nations General
Assembly (UNGA), the US President Dwight D. Eisenhower presented his “Atoms

3

for Peace” proposal, stating the need for an international organization which would
disseminate peaceful nuclear technology and guard against the developmentof atomic materials for militar y purposes. 6） In response to this proposal, theInternational Atomic Energy Agency (IAEA) was established in 1957. 7） The
IAEA was charged with the dual responsibility: (1) promotion of atomic energy
by encouraging research and its development for peaceful uses, and (2) control
of nuclear technology by establishing and administering safeguards designed toensure the use of those special fissionable materials.8）
With the IAEA established, not only to prevent the spread of nuclear weapons
and to promote cooperation in the peaceful uses of nuclear energy, but also tofurther achieve the goal of nuclear disarmament, the NPT was passed by the UNGA
in 1963. It was opened for signature in July 1968, and entered into force in March1970.
Its states-parties are classified in two categories: nuclear-weapon states (NWS)
and non-nuclear-weapon states (NNWS). The NWS, defined as those states whichhave built and tested a nuclear explosive device before 1 January 1967 – the UnitedStates, Russia, the United Kingdom, France, and China (Article 9), agreed to share
the benefits of peaceful nuclear technology and to pursue nuclear disarmament
aimed at the ultimate elimination of their nuclear arsenals, while the others (NNWS)
agree never to acquire nuclear weapons in exchange.9）
The NPT has three pillars in its provisions: prevention of nuclear proliferation,
peaceful uses of nuclear energy and nuclear disarmament. First of all, for theprevention of nuclear proliferation, Article 1 demands the NWS not to transfer
nuclear weapons or other nuclear explosive devices to other states. At the sametime, the NNWS parties to the NPT agree not to receive, manufacture or acquire
nuclear weapons, or to seek or receive any assistance in the manufacture of nuclear
weapons (Article2). Second, Article 4 recognizes the “inalienable right” of sovereignstates to research, develop, and use nuclear energy for non-weapons purposes,
while restricting this right for the NPT parties to be exercised in conformity
with their nonproliferation obligations. Thirdly, Article 6 requires all parties to“undertake to pursue good-faith negotiations on effective measures relating to
cessation of the nuclear arms race, to nuclear disarmament, and to general and4

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complete disarmament.”10）
The treaty is reviewed every five years in the Review Conferences of the NPT
Parties. Though it was originally conceived with a limited duration of twenty-fiveyears (Article 10), state parties unconditionally extended the treaty indefinitely
in the Review Conference on 11 May 1995, affirming the need for achieving “theultimate goals of the complete elimination of nuclear weapons and a treaty on
general and complete disarmament under strict and effective control.”11）
Currently with 191 ratifications, the NPT has almost universal membership.
Even the five NWS has ratified the NPT: the United States, Russia and the United
Kingdom in 1968, and France and China in 1992. Currently, the only remaining
countries outside the treaty are South Sudan, India, Israel, Pakistan, and North
Korea. North Korea acceded in 1985 but never came into compliance, and withdrew
in 2003.
The NPT had significant impacts in making the NNWS step out of nuclear
weapons development. For instance, South Africa had been undertaking a nuclear
weapons program, but has renounced it and signed the treaty in 1991 after
destroying its small nuclear arsenal.12） After this action, the remaining Africancountries signed the treaty. In addition, the former Soviet Republics where nuclear
weapons had been based, namely Ukraine, Belarus and Kazakhstan, transferredthose weapons to Russia and joined the NPT by 1994,13） following the signature of
the Budapest Memorandum on Security Assurances.14）
This trend of advancing disarmament led the adoptions of the NuclearWeapon-Free-Zone (NWFZ) treaties. A NWFZ is where a group of states has freely
established a treaty to ban the use, development or deployment of nuclear weapons.
In fact, several NWFZs contain nuclear power bans as well.15） These prohibitions
are only effective within certain geographical regions, and the UN does not always
officially acknowledge them. Nevertheless, these treaties cover Latin America andthe Caribbean, the South Pacific, Southeast Asia, Africa and Central Asia, which
consists more than fifty percent of the Earth’s surface, having more than a hundred
state parties.16）
However, there are still some countries that hold nuclear weapons even though
they are not part of the NWS according to the NPT. Four states are known or5believed to possess nuclear weapons: India, Pakistan and North Korea have openly
tested and declared that its possession, while Israel is deliberately ambiguous
regarding its nuclear weapons status.17） In addition, Iran, Syria and Myanmar are
under suspicion of their nuclear weapons advancements.
There are also still questions surrounding the NWS whether or not progresshas been made regarding disarmament. The five NWS still hold nuclear weapons,
and the number of their shares seems to remain the same. Moreover, regarding
the United Sates’ nuclear weapons, there are five countries – Belgium, Germany,
Italy, Netherlands and Turkey– hosting those nuclear weapons within its territories,
based on the concept of nuclear sharing.18） Nuclear sharing is one of the NATO’s
policies, which allows member countries that do not possess nuclear weapons
use nuclear weapons of NATO if necessary. This might be considered as an act ofproliferation violating Articles 1 and 2 of the treaty. However, there is no transfer ofthe weapons or control over them intended “unless and until a decision were madeto go to war, at which the treaty would no longer be controlling;” thus, it does notconsist a breach of the NPT.19）
Additionally, there are nations in nuclear alliances, which claim to rely on the
US nuclear weapons for their security known as “nuclear deterrence.”20）These are
Albania, Australia, Belarus, Bulgaria, Canada, Croatia, Czech, Denmark, Estonia,
Greece, Hungar y, Iceland, Japan, Latvia, Lithuania, Luxembourg, Montenegro,
Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South Korea, Spain, besides
the previous five nuclear sharing countries.
“Policy of deterrence” is a political strategy intended to dissuade another state
not to act unfavorably, by using military threat indirectly. Based on the “nuclear
deterrence” policy, states prevent militar y conduct from opponent countries byrecalling the future reprisal of the US nuclear weapons.21） Although this is not a
violation of the NPT, this concept hinders the advancement of nuclear disarmament.

III Understanding of nuclear weapons for military purpose now
In general, the UN Charter forbids the use of military force against states, butholds exceptions for self-defense and for use of force authorized by the Security

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Council. These rules in the Charter apply equally to all use of force against states,
including the use of nuclear weapons. However, this does not mean that states haveunlimited freedom of choice in the weapons they use.
In 1996, the International Court of Justice (ICJ) concluded a Nuclear Weapon
Advisory Opinion on the legality of the threat or the use of the nuclear force, 22）
responding to the UNGA’s resolution 49/75 adopted on 15 December 1994, which
asked the question “Is the threat or use of nuclear weapons in any circumstancepermitted under international law.”23）
To begin, the ICJ looked into the applicable international law. It found that
there is neither a customar y nor conventional international law regarding any
specific authorization of the threat or use of nuclear weapons (Paragraph 105a),but it cannot rule out the lawfulness of the use of a nuclear weapon in “extreme
circumstances of self defense.”24）While state practices still fall short of establishingan opinio juris on the illegality of nuclear weapons (Paragraph 71), it does not meanthat it is illegal per se.
Next, the ICJ examined the requirements of the law applicable in armed
conflict, especially the principles and rules of humanitarian law, when using nuclear
weapons. The key instrument here is the 1977 Additional Protocol I to the 1949
Geneva Conventions,25） in addition to international customary law. In Paragraph105c, the Cour t concluded that a threat or use of nuclear weapons, which iscontrary to Article 2(4) of the UN Charter or is incompetent to the requirementsof Article 51, is unlawful. A threat or use of nuclear weapons should also meet therequirements of the international law applicable in armed conflict, particularly thoseof the principles and rules of international humanitarian law (Paragraph 105d).
Collating these principles with threat or use of nuclear weapons, it would generally
be contrary to the rules of international law applicable in armed conflict (Paragraph105e). The Court also mentioned the Marten Clause, which is codified in the 1977
Geneva Convention Additional Protocol I Article paragraph 2, stating that “Incases not covered by this Protocol or by other international agreements, civilians
and combatants remain under the protection and authority of the principles ofinternational law derived from established custom, from the principles of humanity
and from the dictates of public conscience (Paragraph 78).” That is to say, if an7envisaged use of weapons would not meet the requirements of customary law andhumanitarian principles, a threat to engage in such use would also be contrary tothat law, including nuclear weapons.
The principles important here are distinction, proportionality, precaution, andunnecessary suffering. First, it is prohibited to employ an indiscriminate attack. A
nature of an attack must meet military objectives and there must be distinctions
between civilians and combatants.26） Under this principle, the nuclear bombingsof Hiroshima and Nagasaki would equally be ruled out since it was conducted inindiscriminately aerial bombardments.27） Second, the principle of proportionality
has to be considered in that the conduct cannot be “excessive in relation to theconcrete and direct militar y advantage anticipated.” 28） This principle might not
in itself exclude the use of nuclear weapons in self-defense in all circumstances.
Thirdly, in the conduct of military operations, “constant care shall be taken to sparethe civilian population, civilians and civilian objects,” by providing precautions ofan attack.29） Regarding this rule of precautions, the International Committee of
the Red Cross (ICRC) suggest that it “does not imply any prohibition of specificweapons.”30） Lastly, the fourth principle, unnecessar y suffering, must be met.
This is a prohibition on the use of weapons of a nature to cause superfluous injury
or unnecessar y suffering, according to the Additional Protocol 1 of the Geneva
Convention Article 35 (2). In addition to these four main principles, the ICJ added
the fifth rule, the protection of the natural environment. It concerns the means of
warfare that cause widespread, long-term, and severe damage to the environment,
although it is questionable whether this rule applies to nuclear weapons.31）
With the question of legality of policy of deterrence, the Cour t does notpronounce reasoning that it is a political matter to be concerned (Paragraph 67).
Yet, it still requires states to demonstrate those military aggressions with credible
intention to use nuclear weapons (Paragraph 48).
For these reasons, the Cour t finds that even though ever y state has its
fundamental right to survival and thus its right to resort to self-defense as written in
Article 51 of the UN Charter, the use of nuclear weapons must be conducted undercertain requirements even when its survival is at stake (Paragraph 96).
Based on this view, France and the United Kingdom have ratified the

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Additional Protocol I, yet formulating reser vations regarding its application to
nuclear weapons. China, North Korea and Russia are parties to the Protocol I, but
the remaining states possessing nuclear weapons—India, Israel, Pakistan, and theUnited States—are not parties.32）
The ICJ additionally defined the legal interpretation of the NPT Article 6. It
stated that “Each of the Parties to the Treaty undertakes to pursue negotiations ingood faith on effective measures relating to cessation of the nuclear arms race at
an early date and to nuclear disarmament, and on a treaty on general and complete
disarmament (Paragraph 105f).”33） The Court explicitly acknowledged the NPT
state parties’ obligation to negotiate in good faith a nuclear disarmament (Paragraph99).

IV Movement to create the TPNWOne of the criticisms that the NPT has is the gap between nuclear disarmamentand its ultimate goal to eliminate nuclear weapons. While the NPT prohibits theproliferation and obligates states to continuously negotiate to advance disarmamentin Article 6, it does not impose the obligation to eliminate nuclear weapons. Thatsaid, depending on the intention of the NWS, it is possible to interpret the NPT
as a treaty which indefinitely permits nuclear weapon possession unless it does
proliferate. Under this interpretation, Article 6 does not strictly demand stateparties to actually aim for disarmament treaty, rather only to negotiate in goodfaith. This attitude can be found in the fact that the pursuant of nuclear weapons
disarmament has not been reflected in practice.34）
However, triggered by the ICJ Advisory Opinion 1996, the UNGA has passed
resolutions calling all the NPT parties to comply with their disarmament obligations
ever y year since 1996. Eventually in 2007, 127 countries voted in favor of thisresolution, including four states with nuclear weapons: China, India, Pakistan andNorth Korea.35）
The year 2010 was a turning point of the international community, actually
moving forward to achieve nuclear weapon elimination. The UN Security Council
Resolution 1887 resolved to create a world without nuclear weapons,36） which

9initiated the movement to go beyond of proliferation but ban the use of nuclear
weapons. In addition, the resolution passed in the 2010 NPT Review Conference(i) resolved “to seek a safer world for all and to achieve the peace and security ofa world without nuclear weapons, in accordance with the objectives of the Treaty,”(v) expressed “its deep concern at the catastrophic humanitarian consequencesof any use of nuclear weapons,” reaffirmed “the need for all States at all times tocomply with applicable international law, including international humanitarian law,”and (Action 1) resolved that all states parties shall “commit to pursue policies thatare fully compatible with the Treaty and the objective of achieving a world without
nuclear weapons.”37）Since then, the movement to examine nuclear weapons from ahumanitarian perspective has accelerated.

V Treaty on the Prohibition of Nuclear Weapons
The TPNW was adopted on 7 July 2017 by the United Nations conference.
This is the first legally binding international agreement to prohibit “Development,
Testing, Production, Stockpiling, Transfer, Use and Threat of Use of Nuclear
Weapons” and is aiming for “their Elimination.”In the Preamble, three main and notable elements can be obser ved. First,
it expresses its adoption of a humanitarian approach to promote the negotiation
regarding nuclear weapons. It is identified that this approach was motivated by the“catastrophic consequences” of nuclear weapons use (Paragraph 2), by the risk of
their continuous existence (Paragraph 3), by the suffering of the hibakusha (thesurviving victims of the 1945 atomic bombings of Hiroshima and Nagasaki) and thevictims of nuclear tests (Paragraph 6). There had finally realized that the complete
elimination of these weapons was the only way to guarantee that nuclear weapons
will never be used again (Paragraph 2).
Second, the Preamble indicates that the TPNW legally prohibits any useof nuclear weapons. Reaffirming the need of state’s compliance with applicableinternational law (Paragraph 8), indicating the basing on the principles and rulesof international humanitarian law (Paragraph 9), and considering that any use of
nuclear weapons would be contrar y to the rules of international law applicable

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in armed conflict (Paragraph 10) and would also be abhorrent to the principles
of humanity and the dictates of public conscience (Paragraph 11), the Preamble
recalls that states must refrain from threat or use of force in accordance with the
UN Charter (Paragraph 12).
Lastly, it expresses concerns that previous nuclear disarmament had been slow
due to the continued reliance on nuclear weapons in military and security concepts(Paragraph 14), even when the UNGA resolutions called for the elimination of
nuclear weapons (Paragraph 13). Mentioning the importance of the obligation to
pursue in good faith aiming to achieve nuclear disarmament, which is promised in
the NPT Article 6 (Paragraph 17), eventually, it recognizes that a legally binding
prohibition of nuclear weapons constitutes an important contribution towards theachievement and maintenance of a world free of nuclear weapons (Paragraph 15).
Following the Preamble, twenty provisions lay the prohibition of nuclear
weapons. Article 1 prohibits any development, testing, production, stockpiling,stationing, transfer, use and threat of use of nuclear weapons. Moreover, any
assistance and encouragement to the prohibited activities, and seeking or receiving
those is forbidden. Ar ticle 2 asks state par ties to declare whether it owned,
possessed or controlled nuclear weapons or nuclear explosive devices, and whether
it eliminated its nuclear-weapon program when joining the treaty. If a state has
another country’s nuclear weapons on its territory when it signs the treaty, it must
remove them. The TPNW also requires state parties, which Article 4 does not
apply, to maintain the existing IAEA safeguards obligations and, if they have notalready done so, to accept safeguards based on the model for the NNWS under
the NPT. In addition, the treaty acknowledges the possibility that states currently
possessing nuclear weapons may wish to join the treaty at some point in the future.
Article 4 provides a roadmap for this, mentioning that the states shall cooperate
with, or designate competent international authority to negotiate and verify theelimination of nuclear weapons programs.
The TPNW is unique also because it stipulates the need for victim assistanceand environmental remediation in Article 6. With respect to individuals who are
affected by the use or testing of nuclear weapons (meaning hibakusha), state parties
have to adequately provide assistance.

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In addition, regarding the implementation of the TPNW, there must be aninternational cooperation and assistance to facilitate its implementation (Article 7),
and each states shall encourage non ratified states to sign, ratify, accept, approveor accede to the treaty, with the goal of universal adherence (Article 12). When
ratifying, Article 16 does not allow state’s participation with reser vation to thistreaty, enabling states to make a loophole in the achievement of the complete
nuclear weapon elimination. In the matter of relationship with other agreements, its
implementation “shall not prejudice obligations undertaken by States Parties withregard to existing international agreements, to which they are a party, where thoseobligations are consistent with the Treaty,” according to Article 18.
The TPNW was passed by 122 votes in favor with 1 vote against (Netherlands)
and 1 abstained (Singapore).38） 69 nations did not vote; among them all of the
NWS, nuclear-armed states and all the NATO members except for Netherlands.39）
As of May 2018, it has 58 signatories and 9 parties,40） but still needs at least 50
ratifications of countries to be in force, in accordance with the Article 15(1).
Reactions from the NWFZ countries are favorable; all 33 nations of Latin
America and the Caribbean had subscribed to common regional positions
supporting a ban treaty.41） However, no NWS has expressed support for a bantreaty; indeed, a number of them, including the United States,42）and Russia,43）has
expressed explicit opposition. North Korea was the only nuclear state to vote for
initiating ban negotiations.
The most problematic opposition in the international community is the one ofNATO countries and the states in nuclear alliance. Many the NNWS NATO member
states, along with Australia and Japan, are resistant to a ban treaty, as they believethat the US nuclear weapons enhance their security based on nuclear deterrence
policy. However, Article 1 prohibits the stationing of nuclear weapon (Article 1g);
hence, nuclear weapon hosting countries – Germany, the Netherlands, Belgium,
Italy and Turkey – would have to end contracts on nuclear sharing with the UnitedStates before they possibly could sign the negotiated ban treaty. In addition, since
the threat of nuclear weapon, and receiving assistance of prohibited activities is also
prohibited (Article 1d, f), nuclear deterrence is not admissible under the TPNW,
which makes nations in nuclear alliances be negative about this treaty. Having this12

法律学研究61号（2019）difficulty, several NATO members claimed that the treaty will be “ineffective ineliminating nuclear weapons,” and instead called for advanced implementation of
Article 6 of the NPT.44）

VI Theoretical impact of a treaty based on its wording
On the basis of these provisions, there is the possibility, both positive andnegative, that the TPNW can influence the current landscape of nuclear weapons.
As a binding treaty, the TPNW filled the legal gap between disarmament andnuclear elimination, by explicitly banning the “Development, Testing, Production,
Stockpiling, Transfer, Use and Threat of Use of Nuclear Weapons” and withresolving its elimination as an ultimate goal. Prohibition of the use of nuclear
weapon shall be a first step to move forward to its total elimination, in theory.
However, it is doubtful it can encourage and make states comply with thetreaty in practice, since it lacks detailed provisions on how disarmament and nonuse of nuclear weapon should be advanced to the point of elimination. The TPNW
just prohibits the nuclear weapon use, but it does not mean that it will be totallyeliminated. For example, under the current provisions, the NWS are not obligatedto abolish their use of nuclear weapons as long as they do not ratify it. Thus, nothaving those countries ratified, the prohibition of nuclear weapons would nevercome into force. Here, it becomes important how to aggressively make thosestates to ratify the treaty, but those measures are not specified, and negotiation,
as obligated in Article 6 of the NPT, is the only way provided. Another example of
the TPNW’s lack of detailed regulation is that it does not stipulate rigid measures
to put sanctions on those states which violate it. Article 4 indeed codifies themeasures aiming for the total nuclear weapons elimination programs; however,it only asks ratified countries to comply with the imposed obligation to eliminate
nuclear weapons, such as concluding safeguards agreements with the IAEA andsubmitting a final declaration of its obligation fulfillments to the Secretary Generalof the United Nations. The measure only available to ratified countries, which isthreatened by other country’s breach of nuclear weapon possession, is to remove
nuclear weapons or other nuclear explosive devices in its territory that are owned,

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possessed or controlled by another state (Article 4.4). Article 4 also indicatesthat states shall cooperate with the “competent international authority” to pursue
nuclear weapon elimination program, but the content of this is unclear, and thedetail is left to be decided by future negotiations. Article 11 likewise stipulates theprovision regarding settlement of disputes, yet this also remains to have deliberatemean such as conducting consultation, lacking aggressive measures. Not having
detailed and aggressive processes towards the elimination, the TPNW remains
to be a mere declaration that the nuclear weapon elimination is the international
community’s ideal goal.
Some people contend the context of the TPNW conflicts with the existent NPT
provisions. The adoption of the TPNW caused the situation where two different
legal standards regarding nuclear power coexist at the same time. While the TPNW
prohibits the possession of nuclear weapon by any ratified states, the NPT allows
the five NWS to possess those weapons. Namely, the exact same conduct can befound illegal by one treaty, yet the other finds it lawful. This double standard ininternational law would endanger the legal stability, eventually undermining theinternational NPT regime that was created after a long struggle.
However, this concern is not going to be the case, because of how it wasformulated from the drafting stage. At the UN conference to negotiate a legallybinding instrument to prohibit nuclear weapons while leading towards their totalelimination, the president of the conference, Elayne Whyte Gómez, submitted
the Draft Convention (A/CONF.229/2017/CRP.1) on 22 May in 2017.45） Then,she presented four overarching principles guiding the preparation of the draft:complementarity, reinforcement, simple and non-discriminatory nature, and a basis
for the future.46） First, the TPNW was aimed at strengthening and complementing
the existing instruments, and would not undermine the NPT regime. Second, itshould avoid making any loopholes that could possibly enable any state to evade
existing non-proliferation norms; rather it reinforces the regime cooperatively.
Thirdly, this instrument should be simple and nondiscriminator y, and shouldreflect a clear and strong prohibition of nuclear weapons. Lastly, the TPNW isaimed at the future so that it should be flexible and designed to endure for longterm, with promotion of the achievement and maintenance of a nuclear-free world.

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In other words, the TPNW was designed not to weaken the existing nuclear nonproliferation regime, but to demand explicit and powerful prohibition of nuclear
weapons as well as to last for a long term with application flexibility, while keeping
the future participation of the NWS and nations in nuclear alliances. This attitude
can be shown in the TPNW Article 18, which explains its relationship with otheragreements, in that the implementation of the treaty will not prejudice obligations
imposed by existing international agreements to the extent those obligations are
consistent with it.
Nevertheless, there are some claims that the logic that the TPNW would
reinforce the NPT is not acceptable. At the first preparatory committee for the NPT
Review Conference on 2 May 2017 in Vienna, Russia, one of NWS, stated that “Inthe framework of review cycles, disarmament aspects are prioritized while issuesof non-proliferation and peaceful uses of nuclear energy are being pushed to thesidelines. It is high time to address this imbalance.” 47）By saying this, Russia shows
its position to favor the NPT regime, prioritizing the non-proliferation and peacefuluse of nuclear energy.
Even if this is the case, still, the TPNW fulfills the United Nations’ principles
and objectives as reflected in the UN Charter from legal perspective. Rather, in lightof the original goal of the NPT, the NPT state parties should ratify the TPNW on thelegal basis.
In the 2010 NPT Review Conference Final Document, it was concluded thatseeking a safer world for all and achieving the peace and security of a world without
nuclear weapons (A-i), the unequivocal undertaking of NWS to accomplish thetotal elimination of their nuclear arsenals leading to nuclear disarmament, to which
all states parties are committed under Article 6 (A-ii), the need for all states tocomply with applicable international humanitarian law, concerning the catastrophic
humanitarian consequences of any use of nuclear weapons and (A-v), and the needfor the NWS to reduce and eliminate their nuclear weapons are all promises sharedby every NPT state parties (B-ii).48） In this regard, understanding that the TPNW
was formulated based on all these promises recognized by the NPT state parties,
not joining the TPNW negotiation is rather a violation of the NPT regime.49）It also
can be said that it meets the NPT Article 6, which 191 states promised to good-faith

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negotiations to general and complete disarmament.
For these reasons, even if it strikingly lacks detailed and aggressive measures
to advance its enforcement, the TPNW has certain impact as a binding treaty which
prohibits any possess of nuclear weapons and which resolves its elimination as anultimate goal.

VII Difficulties when making the treaty in force
While admitting its theoretical impact in the international community, it is aseparate issue whether it would be able to have a practical impact, considering thepassive attitude toward its ratification to the TPNW around the world. Especially,
having nuclear deterrence policy, nations in nuclear alliance with the United States
are reluctant to ratify the TPNW.
At this moment, only nine countries have ratified the treaty, and no countries
with nuclear weapons have ratified it. The delegations of the United States, United
Kingdom and France published a joint press statement saying that they “have nottaken part in the negotiation of the treaty… and do not intend to sign, ratify or ever
become party to it.”50） Since the TPNW prohibits any possession of nuclear power
for military purpose, it is unlikely that these states would enter the treaty any timesoon.
The states, which are notably reluctant to ratify the TPNW, are the countries
in nuclear alliance. They claim that nuclear deterrence has been an essential policy
to keep the peace in Europe and North Asia for over seventy years. However, thepolicy of nuclear deterrence and the content of the TPNW completely contradict
each other, since the TPNW Article 1 also prohibits the treat of nuclear weapon
which is the fundamental element of nuclear deterrence theor y. Without the“nuclear umbrella” of the NWS, those states cannot impose pressure on anotherstate with nuclear weapon not to use its nuclear weapon, while defending under
the threat of nuclear weapon also means possession of it. Hence, having the statusquo where the threat of nuclear weapon has been a core foundation of international
security, treaties that denies nuclear deterrent is unlikely to have consent of NWS,
nuclear-armed countries and nations that are depending on those countries’ nuclear

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threat.
However, there is an interpretation of the TPNW Article 1 that a ratified
country “receiving” assistance, encouragement or inducement of nuclear weapons
or explosive devices from non-ratified country is not a violation of the provision.51）
Under this theory, as far as the United States does not ratify the TPNW, countries
currently in nuclear alliance with the United States can enter into the treaty, whileremaining under the United States’ nuclear umbrella. This enables the increase in
the state parties to the treaty, which may make it possible to validate the TPNW.
Yet, this interpretation has its premise that nuclear weapons would keep its
existence between non-ratified nuclear possessing states. Having its nature to aim
at achieving the ultimate goal of the universal elimination of nuclear weapons, statesin nuclear alliances entering into the TPNW is a self-contradiction. Also, there isno incentive for the NWS to provide nuclear power deterrence for states that have
ratified the treaty, which demands themselves to eliminate nuclear weapons.
Having the current nuclear deterrence policy, even if states in nuclear alliance
ratify the TPNW, they would have to encourage other states to prohibit the use of
nuclear power while relying on nuclear umbrella, which is full of inconsistencies.
Therefore, it seems greatly difficult to obtain assents from the NWS and countries
in alliance, such as NATO members.

VIII ‌How the TPNW can impact the use of nuclear weapons by statesthat already possess them
Lastly, it is questionable how the TPNW can affect the use of nuclear weapons
by the states that currently possess them. Even if the wording itself theoreticallyseems to be valid as examined, its impact in practical means may differ, even after
achieving gaining more than fifty ratifications and entering into force.
The TPNW does not require any consensus from the NWS or nuclear-armed
states; thus, it is possible to validate it with just fifty ratifications from non-nucleararmed states (Article 15). However, if the treaty is enacted, it means that the TPNW
demands those countries with nuclear weapons to agree with nuclear weapon
elimination, ignoring the NWS’s intentions or situations around states depending on

17

nuclear deterrence. In this way, it is difficult to bring about and share norms toward
total nuclear weapon elimination, and it may cause division of the international
community, between states that accept the importance of nuclear deterrence andthe others.
Not having aggressive and detailed enforcement mechanism in the treaty, theinternational community must rely on negotiations to advance the status of the
TPNW; however, disagreements among states may worsen since nuclear deterrence
policy is such a fundamental element of the current international security.
Additionally, this confrontation may demolish the harmony between the
NWS and the NNWS, which had been established to some extent under the NPT,
as represented by its almost universal ratification. Yet there is a gap between
disarmament and elimination, the NPT might have had more practical impact
in preventing the use of nuclear weapons in reality. A decrease in the politicalharmony itself may endanger the international peace and make it more difficult toachieve the total elimination.
For these reasons, at this moment, the TPNW cannot positively impact the useof nuclear weapons for those states that already possess them, as it may disarrange
the harmony between the NWS and the NNWS. A negative impact may occur suchthat states with nuclear weapons may advance its use of nuclear weapons.
Following these interpretations, what the TPNW can do now to impact thosestates with nuclear weapons is to push them forward to agree with the provisions
through negotiations, which is motivated by Article 6 of the NPT and which isaiming to pursue the universality of the TPNW as its Article 12 stipulates.
As evidence that the total elimination of nuclear weapon is a persistent final
goal shared in the international community, the TPNW could play its role withprohibition of use of nuclear power as one step. Treaties can shift international
expectations; moreover, a legal binding structure would increase political pressure
for the complete elimination of nuclear weapons, so that it may result in policychange over time. When the NPT was established, it also was not expected that it
would be able to obtain 191 ratifications. Depending on the future negotiations, it
may be possible to actually reduce the use of nuclear weapons, yet it must be a long
and arduous journey.

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Therefore, standing on a long-term perspective, the treaty can stigmatize
nuclear weapons by promoting its prohibition. The conclusion of the TPNW by itself
cannot obtain the effect, but long term endeavor to push the whole international
community forward to the elimination of nuclear weapon is necessary.

IX Conclusion
It is cer tain that the NPT had its legal gap between disarmament andelimination of nuclear weapons. Having the situation where nuclear weapon
disarmament was aspirational and its progress had been delayed, the adoptionof the TPNW theoretically made a step for ward to the total nuclear weapon
elimination. While it has the problem of not having ef fective and detailed
enforcement mechanism stipulated in it, the existence of a treaty by itself isinfluential. In light of the objective of the NPT, it is important to advance theratification of the TPNW. However, actual enforcement is troublesome, since stateswith nuclear weapons are passive in being under the prohibition of nuclear weapon,
and nations in nuclear alliance are reluctant to enter into the treaty by heavily
relying on nuclear deterrence. In addition, even if it comes into force, there is aproblem that the TPNW may generate a confrontation between state parties andnon-ratified states. The lack of positive measures to implement the TPNW makes
this situation depend on negotiation to solve the issue, but the current fixed relianceon nuclear power makes it difficult to proceed this smoothly; it rather may worsen
political tensions. Eventually, the TPNW might end up disturbing the international
harmony which was once achieved under the NPT.
Still, however, the TPNW plays its role in resolving the internationally sharedgoal to eliminate nuclear weapons. By prohibiting the use of nuclear weapon andstigmatizing its existence, it increases the international society’s pressure to get ridof nuclear weapons universally. Nevertheless, it is a hardship to actually advancetotal elimination, and the TPNW will not be able to have strong impact on thepresent circumstances regarding nuclear weapons.

19

1)

United Nations. Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968. 729
UNTS 161.

2)

United Nations. Treaty on the Prohibition of Nuclear Weapons, 7 July 2017.
TREATIES-XXVI-9.

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LeMay, Curtis; Tibbets, Paul. “Bombing of Hiroshima and Nagasaki – 1945,”
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The United States Chairman’s Office. “The United States Strategic Bombing
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Scott, Len; Hughes, R. Gerald. The Cuban Missile Crisis: A Critical Reappraisal.
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6)Eisenhower, Dwight D. Atoms for Peace Speech, at the 470th Plenary Meeting of theUNGA. 8 December 1953. Accessed on 29 November 2018. Available from https://www.iaea.org/newscenter/multimedia/videos/atoms-peace-speech

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Conference on the Statute of the International Atomic Energy Agency. Statute of theInternational Atomic Energy Agency. 23 October 1956. 276 UNTS 3. Article 2, 3.

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UN Review and Extension Conference of the Parties to the Treaty on the NonProliferation of Nuclear Weapons. Final Document. 5 May 1995. NPT/CONF.1995/32(Part I), annex, Decision 3.

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Ibid.
Council on Foreign Relations. Budapest Memorandums on Security Assurances, 1994.
5 December 1994.

15)“Nuclear-Weapon-Free Zones,” United Nations Office for Disarmament Affairs.

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Accessed on 29 November 2018. Available from https://www.un.org/disarmament/
wmd/nuclear/nwfz/
16)

Ibid.

17) “Nuclear Arsenals,” International Campaign to Abolish Nuclear Weapons. Accessedon 29 November 2018. Available from http://www.icanw.org/the-facts/nucleararsenals/
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Ibid.
Donnelly, Brian. “The Nuclear Weapons Non-Proliferation Ar ticles I, II and
VI of the Treaty on the Non-Proliferation of Nuclear Weapons,” presentation at
the conference “Non-Proliferation: Point of View from Latin America and the
Caribbean.” Cancún, Mexico, 11-13 Januar y 1995. Available from http://www.
opanal.org/Articles/cancun/can-Donnelly.htm

20)
21)

“Nuclear Arsenals,” International Campaign to Abolish Nuclear Weapons.
Snyder, Glenn H. Deterrence and Defense: Toward A Theory of National Security.
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ICJ. Legality of the Thread or the Use of the Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996, p.226. 8 July 1996.

23)
24)

UNGA. Resolution 49/75. 15 December 1994. A/RES/49/75.
ICJ. Legality of the Thread or the Use of the Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996, p.226. 8 July 1996. Paragraph 105 (2)(E).

25)

International Committee of the Red Cross. Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I). 8 June 1977. 1125 UNTS 3.

26)

Ibid. Article 51(4)(c).

27)

Shimoda et al. v. The State, the Tokyo District Court. 7 December 1963.

28)

ICRC. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I). Article 51(5)(b).

29)

Ibid. Article 57(1).

30)

Ibid. Paragraph 2201.

31)

Ibid. Ar ticle 35(3); Henckaer ts, J.M. “Study on Customar y Inter national
Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of
Law in Armed Conflict,” International Review of the Red Cross, Vol. 87, No. 857. 2005.
Page 191.

32)

ICRC. “Protocol Additional to the Geneva Conventions of 12 August 1949, andrelating to the Protection of Victims of International Armed Conflicts (ProtocolI), 8 June 1977.” Accessed on 29 November 2018. Available from https://
ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=Xpages_
NORMStatesParties&xp_treatySelected=470

33)

Nystuen, Gro; Casey-Maslen, Stuart; Golden, Annie (eds). “Nuclear Weapons

21

Under International Law,” International Review of the Red Cross, 97 (899), The humancost of nuclear weapons. 2015. Page 913-921.
34)

https://www.asil.org/insights/volume/21/issue/12/treaty-prohibition-nuclearweapons

35) Dunworth, Treasa. “The Treaty on the Prohibition of Nuclear Weapons,” Volume
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37)

UN Review and Extension Conference of the Parties to the Treaty on the NonProliferation of Nuclear Weapons. Final Document. May 2017. NPT/CONF.2010/50(Volume I).

38) United Nations. Voting record of the UN draft treaty on the prohibition of nuclear
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L.3.Rev_.1.pdf
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Ibid.

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“Signature/ratification status of the Treaty on the Prohibition of Nuclear Weapons,”
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weapons.
42) “Statement to Vienna Humanitarian Impact of Nuclear Weapons Conference:
Impact of Nuclear Weapons Explosions,” U.S. Mission to International Organizations
in Vienna. 8 December 2014. Accessed on 29 November 2018. Available fromhttps://vienna.usmission.gov/impact-of-nuclear-weapons-explosions/43)“Statement by Russian Foreign Minister Sergey Lavrov at the Conference on
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content/id/2122859

44)“Taking forward multilateral nuclear disarmament negotiations - Explanation of
Position on behalf of the following states : Albania, Australia, Belgium, Bulgaria,
Canada, Czech Republic, Denmark, Estonia, Germany, Greece, Hungar y, Italy,
Latvia, Lithuania, Luxembourg, Montenegro, Poland, Portugal, Republic of Korea,
Romania, Slovakia, Slovenia, Spain and Turkey,” Reaching Critical Will. Accessedon 29 November 2018. Available from http://reachingcriticalwill.org/images/

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documents/Disarmament-fora/1com/1com16/eov/L41_Poland-etal.pdf
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United Nations conference to negotiate a legally binding instrument to prohibit
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Uliyanov, Mikhail I. STATEMENT. 2 May 2017. Accessed on 29 November 2018.
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48)

UN Review and Extension Conference of the Parties to the Treaty on the NonProliferation of Nuclear Weapons. Final Document.

49)
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51)

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