By Wygene Chong
The Nobel Peace Prize for this year was awarded to the International Campaign to Abolish Nuclear Weapons (ICAN for short). The Norwegian Nobel Committee, which is responsible for the award, said:
The organization is receiving the award for its work to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons and for its ground-breaking efforts to achieve a treaty-based prohibition of such weapons…
Through binding international agreements, the international community has previously adopted prohibitions against landmines, cluster munitions and biological and chemical weapons. Nuclear weapons are even more destructive, but have not yet been made the object of a similar international legal prohibition. Through its work, ICAN has helped to fill this legal gap.
The treaty in question is the 2017 Treaty on the Prohibition of Nuclear Weapons. It has so far 53 signatories and 3 ratifications out of 50 ratifications necessary to enter into force. Its provisions say that, in no uncertain terms, nuclear weapons are banned. More specifically, in article 1:
Each State Party undertakes never under any circumstances to:
- Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
- Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;
- Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;
- Use or threaten to use nuclear weapons or other nuclear explosive devices;
- Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;
- Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;
- Allow 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.
A debate has ensued for some decades over whether the world should have a complete ban on nuclear weapons, such as in this 2017 treaty, or whether a policy of non-proliferation should prevail. Non-proliferation refers to the gradual reduction of nuclear weapon stockpiles through dis-encouragement. It can be crudely contrasted with an outright ban in the following way:
- Non-proliferation: you should not have nuclear weapons and should take steps to reduce your stocks.
- Prohibition: you must stop using nuclear weapons now and start reducing your stocks now.
The world has generally followed a policy of non-proliferation pursuant to the terms of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. This allows certain nuclear powers to retain their stocks of nuclear warheads, while preventing other countries from acquiring nuclear weapons. The nuclear powers include all permanent members of the UN Security Council. That they are permitted to retain their nuclear weapons, and are only encouraged rather than forced to give up them up, is a source of great frustration for many. In the wake of nuclear tests by the Democratic People’s Republic of Korea (North Korea), the success of non-proliferation has been even more severely questioned. The treaty has not been able to prevent nuclear tests by North Korea.
However, would an outright ban actually do anything? Australia’s official position is ‘no’. Leaving aside considerations such as Australia’s alliance with the United States – which leads the non-proliferation community – and other diplomatic reasons for denouncing a nuclear ban, there is a logical reason. Fundamentally, international law can have little effect if the countries which have the greatest interest in a particular issue do not agree on a proposed solution. For example, I have previously explained how laws that regulate conflict can be more effective than laws seeking to prevent conflict in the first place Denuclearisation can only occur if nuclear-armed states agree to give up their weapons voluntarily or in exchange for an incentive.
On voluntariness, there have been times when even nuclear-armed states have agreed to denuclearise, such as in article V of the 1959 Antarctic Treaty or in the brilliantly named 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof. As for incentives, a strong incentive would be the simultaneous destruction of all nuclear weapons in the world. That was partly the aim of the 2017 nuclear ban treaty, although it would have only worked if all the nuclear-armed states signed it.
The Nobel press release agrees with this view:
The Norwegian Nobel Committee is aware that an international legal prohibition will not in itself eliminate a single nuclear weapon… [t]he Non-Proliferation Treaty will remain the primary international legal instrument for promoting nuclear disarmament…
Achieving peace is no easy task.
Wygene Chong is a third-year JD student and research assistant at The University of Western Australia who cannot resist referring to Antarctica in blog articles.
 Norwegian Nobel Committee, ‘The Nobel Peace Prize for 2017’ (Press Release, Oslo, 6 October 2017).
 https://treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf (accessed 7 October 2017).
 https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXVI/XXVI-9.en.pdf (accessed 7 October 2017).
 My emphasis.
 https://treaties.un.org/doc/Publication/UNTS/Volume%20729/volume-729-I-10485-English.pdf (accessed 7 October 2017). See, also, this article on the treaty itself by Zachary Lucas.
 See, for example, Paul Malone, ‘Hypocritical Argument on Nuclear Weapons’, Sydney Morning Herald (online), 16 July 2017. http://www.smh.com.au/comment/hypocritical-argument-on-nuclear-weapons-20170713-gxb1i2.html (accessed 11 October 2017).
 Wygene Chong, ‘Fragile Barriers: International Humanitarian Law in the Polar Regions’ (2017) 42(2) University of Western Australia Law Review 110.
 https://treaties.un.org/pages/showDetails.aspx?objid=0800000280136dbc (accessed 11 October 2017).
 https://treaties.un.org/pages/showDetails.aspx?objid=080000028010aa4c (accessed 11 October 2017).