The legal gap should not only concern the nuclear-weapon-states. There is also need for additional legal measures on the part of the non-nuclear-weapon states.
By Torbjørn Graff Hugo
In Working Paper 9 to the NPT Review Conference, the six-nation New Agenda Coalition (NAC—see our glossary for more detail) makes an interesting assertion regarding the legal gap on nuclear weapons. In an otherwise well structured argument for the need for a new legal instrument (of sorts), the six-member group ‘acknowledges that for those States parties to the Treaty that are non-nuclear-weapon States, the key obligation in any new legal instrument would effectively be a reiteration of their existing obligation under article II of the Treaty.’
On the one hand, they are right. One of the key obligations in a new legal instrument would most likely be the acquisition and manufacture of nuclear weapons, something that is already prohibited for all non-nuclear-weapon state (NNWS) parties to the NPT. On the other hand, such language sends an ambiguous signal about the need for a comprehensive prohibition on nuclear weapons—and about the elements such a treaty would contain.
The point about the ‘legal gap’ identified in Vienna is that it doesn’t only concern the nuclear-armed states. It is not simply an epiphany about the fact that nuclear weapons are not prohibited for those states that happen to possess them. As Reaching Critical Will and Article 36 explain in their short but useful overview of the ‘legal gap’, current international legislation on nuclear weapons is wanting on a number of fronts, making it relevant for virtually all states in the world.
In the matrix included in the abovementioned paper, several of the ‘gaps’ identified would presumably apply to all states, not only those possessing nuclear weapons. For example:
- ‘The transit of nuclear weapons is not prohibited by any treaty.’
- ‘Neither the NPT nor any other agreement prohibits consultation or planning on the use of nuclear weapons’, with NATO’s Nuclear Planning Group as a case in point.
- ‘There is no explicit treaty prohibition against financing of the production, maintenance, or modernisation of nuclear weapon systems.’
- ‘There is no international legal instrument that provides a framework for victims and survivors of nuclear weapons collectively to seek assistance towards the full realisation of their rights’.
- ‘There are no specific international obligations to engage in efforts to decontaminate or remediate areas affected by nuclear weapon detonations, whether through testing, use, or production’.
Moreover, none of the existing treaties governing nuclear weapons explicitly require states to implement measures on a national level, among other things through the national criminal code. In several of the NNWS that are under a nuclear umbrella (e.g. Norway and Spain) the possession of nuclear weapons by individuals is mentioned in the criminal code (punishable by up to 15 years in prison in Norway). For an unknown number of nuclear-weapon-free zone (NWFZ) states, however, this appears not to be the case. According to one diplomat from a NWFZ state, the police in that country would not be able to make a case against you if you were caught with a fully functional nuclear weapon, because the laws against it simply do not exist. The same goes for financing or inducement, which makes it perfectly legal in almost every NNWS to invest money in a company that produces nuclear weapons.
[it is] perfectly legal in almost every NNWS to invest money in a company that produces nuclear weapons
If the goal is to ‘stigmatize and eliminate’ nuclear weapons, as the story goes in the Humanitarian Pledge, shouldn’t that legal gap also be filled? And if so, doesn’t it amount to something more than a simple reiteration of current obligations?
Moving towards the peace, security, and legal framework of a world without nuclear weapons will mean changes for everyone. One place to start could be to do further work on identifying ‘best practice’, which could be very useful as a guide during discussions on how the legal gap should be filled.
In fact, let me end this comment by announcing a little competition: name the state in the world that you believe has the most comprehensive prohibition in place against nuclear weapons, and list the laws and regulations in question. A joint ILPI-UNIDIR jury will pick a winner in due course. The price? A signed copy of the book Nuclear Weapons under International Law (Cambridge 2014).
The comment-section is all yours. Take it away!
 This is a problem that the United Nations Security Council attempted to remedy through its resolution number 1540 (2004). The resolution requires all states to implement appropriate national legislation to prevent non-state actors from acquiring any form of weapons of mass destruction (WMDs). Adopted under Chapter VII of the UN Charter, the resolution is legally binding on all UN member states, but it does not remove the legal rationale for codifying the obligations into treaty law.