Treaty on the prohibition of nuclear weapons - forandagainst

Abstract. This article examines the elements of the Treaty on the Prohibition of Nuclear Weapons; the positions of the States which are parties to the negotiations on the preparation of the Treaty text; and its relationship with other legal instruments in the field of nuclear disarmament and the non-proliferation of nuclear weapons. The main source of information for the writing of this article was the personal participation of one of the co-authors in two sessions of a conference in March and June-July 2017 in New York.

Research Methodology

Topreparethis article, general Scientificmethods of research were used - analytical; comparative- historical; descriptive; and methods including observation, generalization and abstraction. The main source of information for this article was the personal participation of one of the co-authors in two sessions of the talks in March and June-July 2017 in New York [1], as well as the materials of the meetings of the Conference on the preparation of the text of the TPNW and the UN documents.

Introduction

On July 7, 2017, at the UN headquarters in New York, during the final session of the negotiations on the development of a legally binding instrument on the prohibition of nuclear weapons, the overwhelming majority of participants approved the text of the Treaty on the Prohibition OfNuclearWeapons (hereinafter referred to as “the Treaty” [2].

On September 20, 2017, the Treaty was opened for signature. It will enter into force after it will be ratified by 50 participating states. To date, the Treaty has been signed by 57 states (including Kazakhstan), five of which have ratified the document. Thefive are Cuba₅Guyana, Mexico, Thailand and Vatican [3].

The main goal of the adoption of the Treaty is the legal prohibition of nuclear weapons. As a reminder, only nuclear weapons have not yet been legally prohibited from among the three types of weapons of mass destruction: nuclear; chemical (prohibited by the 1972 Convention); and biological (prohibited by the 1993 Convention).

Moreover, the status of the five nuclear- weapon states -theUnited States, Britain, France, Russia and China - is legalized in accordance with the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Another four states - Israel, India, Pakistan and the DPRK - possess nuclear weapons, but are not parties to the NPT.

The fact of the adoption of the Treaty of the Prohibition of Nuclear Weapons is a historic event in the field of nuclear disarmament; but there are several ambiguous points that had emerged in the process of its development and preparation for signing.

First of all, despite the efforts of 137 negotiators and the President of the Conference (negotiations) to reach a consensus, the Treaty was put to the vote. As a result, 122 states voted in favor. The Netherlands, who insisted on voting, voted against the adoption of the Treaty. Singapore abstained [4] .

To this, we must add the fact that the states possessing nuclear weapons and their allies did not takepartin thenegotiation process. 13 negotiators- Andorra, Armenia, Barbados, Cameroon, Guinea, Libya, Monaco, Nauru, Nicaragua, Swaziland, Syria, Macedonia and Zambia - refused to vote [5]. All this significantly reduces the likelihood of the practical implementation of the Treaty, even if it enters into force.

It is obvious that the states possessing nuclear weapons, despite their refusal to participate in the negotiation process, followed the negotiations closely and actively influenced them through their allies. This is evidenced by the position of the Netherlands, for example, a member of NATO, which, in fact, did not allow the adoption of the text of the Treaty by consensus.

Iran was the only state among the negotiating participants which from the very beginning of the negotiation process called insistently for the harmonization of the most compact document, the main focus of which would be the legal prohibition of nuclear weapons and the removal of a legal gap in this area [6].

Ideally, in our opinion, the prohibition and destruction of nuclear weapons would have to be carried out in two stages:

Stage 1 - the complete and exhaustive prohibition of nuclear weapons de jure - the adoption of the Treaty;

Stage 2 - the adoption of the Convention, which regulates the destruction of nuclear weapons within the agreed timeframe, the adoption of verification mechanisms, as well as the identification (or establishment) of a specialized Agency for the verification of disarmament.

The development and adoption of the Convention requires considerably more time and scrupulous elaboration of all technical issues on the destruction of nuclear weapons, as well as the development and adoption of acceptable verification mechanisms. This is confirmed by the experience of the international community in developing an appropriate model convention in 1997 and 2007 [7].

Thus, the task of the Treaty is to secure the “point of no return” - the signing and entry into force of the first-ever international treaty on the legal prohibition of nuclear weapons.

The decision of the states participating in the negotiations to adopt provisions on both the legal prohibition and the destruction of nuclear weapons in one Treaty may in the future damage the process of nuclear disarmament, in view of the poorly developed issues of verifying nuclear disarmament in the text of the document.

II. Development and Adoption of the Treaty on the Prohibition of Nuclear Weapons: complexities and problem issues

Problems of both a technical and an ideological nature arose within the process of developing and adopting the Treaty. Technical complexities can be identified, such as, for example, the poorly developed original text of the Treaty, which was submitted to the negotiating states on May 22, 2017. This factor, along with a shortage of time, did not allow participants to qualitatively finalize the text of the Treaty during the negotiation process.

Certain technical complexities were also associated with the format for organizing the discussion of the text of the Treaty. In addition to the classic negotiating process, panel sessions were organized with the participation of independent experts, which, in fact, was a substitute for real negotiations between the participating states and led to the loss of precious time.

However, the greatest interest lies in the analysis of the complexities and issues of an ideological nature, according to which states have different positions. These are problems such as the structure of the treaty and the content of its preamble, prohibitions related to nuclear weapons, and especially its transit, verification of nuclear disarmament, etc.

Position of the Nuclear Powers and Their Allies

As noted above, the Nuclear Possessing States and their allies boycotted negotiations on the preparation of the text of the Treaty.

On March 27, 2017, in New York on the first day of the negotiations, 21 states, led by the United States, Britain and France, issued a statement to the press opposed to the negotiations [8]. The nuclear trio was Supportedby 18 states - Australia, Albania, Bulgaria, Hungary, Greece, Denmark, Latvia, Lithuania, Luxembourg, Poland, Republic of Korea, Romania, Slovenia, Turkey, Ukraine, Croatia, Czech Republic and Estonia.

Japan took part only in the general debate of the first session of the Conference in March 2017 and stated the following: “A ban treaty, if it does not lead to an actual reduction of a single nuclear warhead, would be of little significance. In fact, efforts to make such a treaty without the involvement of nuclear-weapon states will only deepen the schism and division not only between nuclear-weapon states and non-nuclear-weapon states, but also among non-nuclear-weapon states, which will further divide the international community. Therefore, our common goal will be pushed away, a goal of reaching a world free of nuclear weapons. Even if such a ban treaty is agreed upon, we don't think that it would lead to the solution of real security issues, such as the threat by North Korea. This is why we voted against the UN General Assembly resolution 71/258 last year” [9].

It should also be noted that although at the vote of the First Committee of the UN General Assembly, the DPRK voted in favor OfResolution No.71/258 “Taking forward multilateral nuclear disarmament negotiations”, and China, India and Pakistan abstained [10],, these states did not participate in the negotiations.

Following the second session of the talks on July 7,2017, the United States, Britain and France issued a joint statement stressing that “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”[ 11 ].

The Russian side, during the first meeting of the Preparatory Committee for the NPT Review Conference in May 2017 in Vienna, stated that: “... this is an erroneous path, fraught with unforeseen consequences, including for the NPT. We call on all to remember in New York about the responsibility for the fate of the NPT and not for damage to the NPT”.

On September 20, 2017, the NATO member states issued a press release, which, in particular, stressed the following: “The ban treaty is at odds with the existing nonproliferation and disarmament architecture. This risk undermining the NPT, which has been at the heart of global non-proliferation and disarmament efforts for almost 50 years, and the IAEA Safeguards regime which supports it. The crisis caused by North Korea underlines the importance of preserving and enhancing the existing framework of the NPT” [12].

Thus, the Nuclear Possessing States a designated unequivocally their attitude to the Treaty on the Prohibition of Nuclear Weapons, clearly indicating the impossibility of their acceptance of the Treaty. Non-participation of the Nuclear Possessing States in the Treaty and, most likely, of their allies reduces its provisions to a purely declarative statement. The only rational gain in this case will be the existence of an international legal instrument (when the Treaty enters into force) that legally prohibits nuclear weapons, which can serve as the basis for the adoption of international arbitral and judicial decisions against any attempt to legalize the use or threat of use of nuclear weapons in relations between states.

As noted above, participation of the Netherlands in the negotiations is most likely related to their role as a conductor of the position OfNuclearPossessing States. In principle, even at the first session of the Conference in March 2017, the participation of the Netherlands, a NATO member state, on whose territory nuclear weapons were stationed, was at least strange, against the backdrop of a boycott of nuclear powers and their allies.

However, at that time there were some so- called logical justifications, which amounted to the fact that the Netherlands participated in the negotiations on the basis of the demands of its Parliament; and also wished not to spoil its chairmanship at the first meeting of the Preparatory Committee for the Review Conference of the Treaty on the Non- Proliferation OfNuclearWeapons (NPT), which was held in Vienna in May 2017.

On the first day of the second session of the Conference, on 15 June 2017, the Netherlands, as in March 2017, stated that they would be able to support the draft Treaty only if it did not conflict with their obligations under NATO [13]. This position was also confirmed by them on the second day of the Conference.

It was thus clear from the very first days of the Conference that consensus adoption of the document could be forgotten about; and in any case, would be put to the vote.

On the other hand, the President of the Conference could take advantage of this situation and achieve maximum strengthening of the text of the Treaty; but did not do so.

Preamble

The Preamble is important because it sets the tone for the document and reflects the importance that the participating states give it.

In the first draft of the Treaty (at that time called the Convention) [14], the historical importance of the document as a breakthrough in the field of nuclear disarmament was not reflected. In particular, there were no references to the first UN resolution, the advisory opinion of the International Court of Justice, the Convention on the Prohibition of Chemical Weapons, the Convention on the Prohibition of Biological Weapons, the First Special Session of the United Nations General Assembly on Disarmament (SSOD-I), etc.

Unfortunately, the negotiating states very easily agreed not to include the following binding references in the Preamble of the Treaty:

• The advisory opinion of the International Court of Justice dated 8 July 1996;
• Thefinal document of the first special session of the General Assembly on disarmament dated 30 June 1978;
• Conferences held on the humanitarian implications of the use of nuclear weapons;
• References to conventions banning biological (1972) and chemical (1993) weapons.

Earlier, New Zealand at the first session of negotiations in March 2017 noted rightly that “it is necessary to show the path traveled by the world community since 1946” [15].

In addition, in the context of the prohibition of nuclear weapons, the direct reference in the preamble to humanitarian law and the principles of warfare raises questions: “Basing themselves on the principles and rules of international humanitarian law, in particular 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” [16], which does not meet either the objectives of the Treaty or its spirit.

Article 1. Prohibitions

Until June 27,2017 (the second session of the negotiations began on June 15, 2017), Article 1, despite numerous proposals by states to amend it and strengthen it, remained unchanged.

The negotiating states failed to agree on the inclusion of the following prohibitions:

• military or other preparations for the use of nuclear weapons;
• financing of research in the field of nuclear weapons;
• transit of nuclear weapons.

And the inclusion of a prohibition on the threat of nuclear weapons required the colossal efforts of the participating states. In addition, it is surprising that the the President of the Conference adopted the minority position (Switzerland and Austria), while the following countries were in favor of banning the threat of nuclear weapons: Algeria; Brazil; Vietnam; Indonesia; Argentina; Guatemala; Kazakhstan; Cuba; Nigeria; Thailand; Ecuador; Philippines; Chile; Uganda; Palestine; Mozambique; Venezuela; Bangladesh; Singapore; Malaysia; Republic of South Africa; Egypt and Peru[17],

Only after the Iran's detailed speech with an overview of the prohibition on the threat by force in the international law, the Conference Chairman was forced to include this provision in the draft Treaty.

The most interesting discussion at the Conference took place around the ban on the transit of nuclear weapons. Argentina, Guatemala, Peru, Kazakhstan, Nigeria, Ecuador, Malaysia, Iran, Cuba and New Zealand advocated a ban on transit [18].

On June 22, 2017, a separate discussion took place on the provisions of Article 1 of the Treaty on the Prohibition of the Transit of Nuclear Weapons. The Chairman of the Conference organized a panel session with the participation of three independent experts who tried to persuade states not to include a ban on transit in the text of the Treaty. In particular, these experts cited the pseudo argument that the prohibition of the transit of nuclear weapons in the draft Convention (TPNW) “could undermine the existing disarmament instrument - nuclear-weapon-free zones”, the creation of which does not prohibit transit, but leaves the issue at the national level.

Efforts to include provisions on the prohibition of transit of nuclear weapons, adopted by the majority of the participating states, could not overcome the opposition of the minority, in particular, Austria and Singapore, which opposed the inclusion of this prohibition. In this regard, Austria's argument that “the transit of nuclear weapons will be difficult to control” [19], and also that there will be no vacuum in prohibitions, since “transit” is covered by “assistance”. The argument is really untenable, given that the complexity of monitoring the disarmament process itself cannot be the basis for refusing the Treaty.

In this context, in order to exclude any possible legal loopholes in the future, the inclusion of a provision prohibiting the transit of nuclear weapons was critically important and justified.

Given the importance of this issue, we believe it appropriate to bring forward the “backdating” arguments for the prohibition of the transit of nuclear weapons now.

1. The Treaty on the Prohibition of Nuclear Weapons is the first international legal instrument to ban nuclear weapons in history.

In this regard, it was important to provide for an exhaustive ban on nuclear weapons and any actions that had anything to do with nuclear weapons.

The argument that the prohibition of the transit of nuclear weapons is covered by other prohibitions also does not withstand any criticism. After all, if we proceed from this logic, then along with a direct ban on nuclear weapons, it makes no sense to prohibit the threat of use of nuclear weapons, production, stockpiling, storage, deployment, military preparations and many other bans that are, as it were, covered by a general ban on nuclear weapons.

Here it will be appropriate to recall one of the rules of chess: overprotection is protection with a “reserve”, that is, the number of defenders exceeds the number of attackers focused on a particular point on the board around which the fight must unfold.

Paraphrasing chess terminology, the prohibition of the transit of nuclear weapons, along with other prohibitions, would provide “excessive protection” of the obligations of states to ban nuclear weapons and their complete destruction.

1. With regard to the complexity of monitoring the ban on the transit of nuclear weapons, it is important to recall that the Treaty will strive for universality, and all nuclear weapons will be prohibited and destroyed. Accordingly, all states, including nine states that possess nuclear weapons or have nuclear weapons programs, will be interested in its strict observance.
2. As the importance of including a ban on the transit of nuclear weapons, we recall the Russian Federation's reservation to the Protocol on Negative Security Assurances to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia: “The Russian Federation reserves the right not to consider itself bound by the obligations provided for by the Protocol, in the event that any state party to the Treaty, in accordance with Article 4 of the Treaty, admits entry into its ports and landing on its airfields of foreign military vessels and aircraft with nuclear weapons or other nuclear explosive devices on board, as well as in any form of transit through their territory of nuclear weapons or other nuclear explosive devices” [20].

This reservation shows how important is the issue of the ban of transit even in present reality.

1. The argument put forward in the discussions of independent experts on the weakening of zones free of nuclear weapons is untenable, because the areas prohibit nuclear weapons on their territory, meaning its existence outside.

The Treaty, in fact, seeks to transform the entire planet Earth into one large nuclear- free zone. Accordingly, there will not be any territories where nuclear weapons will exist.

Thus, the Treaty does not weaken the nuclear- weapon-free zones but strengthens them.

1. Hypothetically, the nuclear powers can declare that the issue of banning and destroying nuclear weapons affects the interests of national security and, if signed or acceded to the Treaty, they must be sure of an unconditional and exhaustive ban to exclude a possible violation of the provisions of the Treaty by one of the nuclear powers.

The absence of a transit ban can serve as a basis for the nuclear powers to argue that the Treaty is weak and that it needs to be supplemented and amended accordingly.

1. Obviously, the nuclear powers will refuse to join the Treaty, since they did not take part in its development.

Most states will sign and ratify the Treaty, and sooner or later it will come into force. And here would be a legally binding ban on the transit of nuclear weapons, which in the future will greatly discomfort the nuclear powers.

Unfortunately, as noted above, most states could not overcome the resistance of the minority.

Complexity of Implementing the
Verification of Nuclear Disarmament

Articles 2-4 of the Treaty on verification of nuclear disarmament are the “Achilles' heel” of the Treaty because of their complicated and intricate formulation. Even at the first reading the following questions arise:

1. How will the nuclear-weapon states that have signed or acceded to the Treaty agree and independently adopt a legally binding plan for the destruction of nuclear weapons?
2. The timeframe for a plan for the destruction of nuclear weapons will be interpreted by each state in its own way, which will inevitably cause a different speed of fulfillment of its obligations. This, as a result, will lead to mutual distrust and make it impossible for each state to implement these plans independently.

It is obvious that a single unified transparent plan should be adopted for the destruction of nuclear weapons, approved in the text of the Treaty (or in the Convention on the Elimination OfNuclear Weapons).

1. Determination of the competent international verification authority (Article 4, clause 6 of the Treaty) - will it be the establishment of a new body or the granting of new powers to the operating organization?

For instance, during the talks, Iran expressed doubts about the possibility of using existing organizations to verify the Treaty. In particular, in March 2017, during the first session of the Conference, Iran drew attention to the fact that “the International Atomic Energy Agency (IAEA) is the main verification organization. We seriously doubt that the IAEA will be able to play this role, since the IAEA Board of Governors includes, basically, states that are not present at this Conference”.

If a decision is made to empower the existing organization, it will be necessary to make appropriate changes to the Statute, their entry into force, and the resolution of other organizational matters.

In this context, a striking example is the amendment to Article VI of the IAEA’s Statute adopted in 1999, which increases the number of members of the IAEA’s Board of Governors from 35 to 43 states. The entry into force of this amendment is not visible in the foreseeable future since this amendment was ratified by only 60 states as of 2017 [21].

Thus, there is a high probability that the requirements of the Treaty for the approval of time-bound plans for the destruction of nuclear weapons at the national level and the need to identify a competent international body will lead to an endless delay in the implementation of these provisions and make it impossible to implement the Treaty even if nuclear powers accede it.

And again, we note that the desire of states to take into account in one document both the issues of the prohibition of nuclear weapons and their destruction naturally led to a significant weakening of the text of the Treaty.

It is important to recall that the 2007 Model Convention on Nuclear Weapons outlines in sufficient detail what should be reflected in the declaration of the state, consisting of four parts: nuclear weapons; nuclear material; nuclear facilities and installations; means of delivery [22].

The Model Convention also sets out in detail five stages of the destruction of nuclear weapons with clear unified timeframes for all states possessing nuclear weapons.

Alignment of the Treaty on the Prohibition of Nuclear Weapons with the Treaty on the Non-Proliferation OfNuclearWeapons (NPT)

The development of the Treaty on the Prohibition of Nuclear Weapons is aimed at strengthening and developing Article VI of the NPT, according to which the participating states committed to negotiate in good faith on effective measures relating to cessation of the nuclear arms race at an early date and on nuclear disarmament...” [23].

However, the UN member states have different understanding of the alignment between the new Treaty on the Prohibition of Nuclear Weapons and the Treaty on the Non- Proliferation OfNuclearWeapons.

The nuclear possessing states and their allies are convinced that the negotiating a ban on nuclear weapons is premature. The adoption of a binding document on nuclear disarmament, in their view, would damage the NPT and, as a consequence, the existing architecture of international security - arguments such as strategic stability, nuclear deterrence, the principle Ofindivisible security were used.

On the other hand, the proponents of the adoption of the Treaty on the Prohibition of Nuclear Weapons are certain that there is no legal conflict between the TPNW and the existing regime of non-proliferation of nuclear weapons based on the NPT.

In this connection, the course of discussion at the Conference of Article 18 of the Treaty “Relationship with other agreements” is indicative: “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”.

Switzerland, Sweden, Austria, the Netherlands, Singapore and Argentina [24] actively promoted the thesis on the need to exclude the last eight words of the article “... where those obligations are consistent with the Treaty”. This, in fact, would put the new Treaty in a subordinate position to the NPT and would preserve the right of the “nuclear five” to possess nuclear weapons.

In a statement in explanation of vote, Sweden reiterated that it considers the role of the NPT to be prevalent and supports the deletion of the last eight words from Article 18 of the Treaty.

Alignment of the Treaty on the Prohibition of Nuclear Weapons with Comprehensive Nuclear-Test-Ban Treaty (CTBT)

The main issue with regard to the integration of the TPNW and the Comprehensive Nuclear- Test-Ban Treaty (CTBT) relates to the need for a special mention in the new Treaty of a ban on nuclear testing, while there is a separate Treaty, although not yet in force today.

An interesting discussion unfolded at the Conference around this issue, reflecting a different understanding of the role and place of the TPNW.

Thus, Switzerland, Sweden, Egypt, Mexico and Nigeria argued that there is no need to include a ban on testing nuclear weapons, since there is a separate Treaty on this ban - the CTBT [25].

On the other hand, Algeria, Brazil, Vietnam, Venezuela, Singapore, Iran, Cuba, Kazakhstan, the Philippines and Ecuador supported the inclusion of the maximum prohibition on nuclear testing - Subcritical testing and computer simulation of nuclear tests - given that these types of tests are not included in the CTBT [26].

As a result, the parties agreed on a simple reference to the prohibition of tests in Article 1 of the Treaty.

In our opinion, while striving for an exhaustiveban on nuclear weapons, the inclusion of the prohibition of nuclear weapons tests in the broadest sense, including the prohibition of Subcritical testing and computer modeling, would strengthen the text of the Treaty and make it possible to supplement significantly the provisions of the CTBT.

III. Strong Treaty or Declarative Document?

What is better - a soft text and a larger number of states-parties to the Treaty or a strong document, but fewer states that support it?

Given the fact that the nuclear weapons states and their allies are not expected to participate in the TPNW, it was necessary to insist on the inclusion of strong provisions in the text of the Treaty - in particular, the ban on the transit of nuclear weapons. Unfortunately, it did not happen. This was hampered by the position of some European states, most likely being influenced by nuclear-weapon states. It was this fact, and not the arguments that they brought, that explained their desire to weaken the text of the Treaty.

The overwhelming majority of the states participating in the negotiations who showed responsibility and political will needed to understand that the states that advocate weakening the provisions of the Treaty do not in fact believe that this document is capable of making a significant contribution to the process of nuclear disarmament. And here it was important to add stronger language to the text of the Treaty, since from the very beginning of the talks it was clear that the Treaty would be adopted through a vote and there was no need to seek consensus.

It can be predicted that in the future, after persistent calls for nuclear states to join the Treaty, the latter may provide an analysis showing that the Treaty, from a practical point of view, is compromised and requires substantial changes and additions. And then, with time, it will become clear that it is necessary to develop and adopt the Convention on the Elimination of Nuclear Weapons, which will clearly and unambiguously describe the mechanisms for the destruction of nuclear weapons, the establishment for this purpose of a specialized agency and other issues of practical implementation of the provisions of the Treaty. And in this case, Articles 2-4 of the TPNW will interfere with the adoption of such a Convention, which may further delay the process of nuclear disarmament.

IV. Further Steps to Strengthen the Process OfNuclear Disarmament

Despite all of the above, the mere fact of the development and opening of the Treaty for signature is a historic event in the field of nuclear disarmament.

In the future, after the entry into force of the Treaty, it will have a direct impact on the nature of the work and documents adopted by the Conference on Disarmament, the First Committee of the UN General Assembly, the Preparatory Committees of the NPT Review Conference, the IAEA General Conference.

At this stage, we believe that the states parties to the Treaty need to take the following priority measures:

To ensure the entry of the Treaty into force as soon as possible.

The above analysis of the progress of negotiations on the new Treaty shows that its entry into force does not promise to be easy.

To re-initiate a resolution of the UN General Assembly requesting the International Court of Justice to issue an advisory opinion on the legality of the threat or use of nuclear weapons.

In particular, as is known, in paragraph 2B of the relevant opinion of the International Court of Justice dated 8 July 1996, the following is delivered: “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such or its application”.

In clause 2D: “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict particularly those of the Principlesandrulesofinternationalhumanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons”.

In clause 2E: “It follows from the above- mentioned requirements that 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, in view of the current state of international law, and of the elements of fact at its disposal, the Court 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 at stake” [27].

Obviously, this conclusion needs to be revised taking into account the adopted text of the TPNW.

States-parties to the Treaty will need to conduct a full audit of their international legal obligations with a view to avoiding a conflict with the new Treaty (to be entrusted to the UN Secretariat).

For instance, questions arise regarding the International Convention for the Suppression of Acts of Nuclear Terrorism, with more than 100 states parties. Out of the states that possess nuclear weapons de jure and de facto, the United Kingdom, France, the USA, Russia, China and India are parties to this Convention.

Clause 4 of Article 4 of this Convention, in particular, notes that “This Convention does not address, nor can it be interpreted as addressing, in any way, the issue of the legality of the use or threat of use of nuclear weapons by States” [28].

This provision can be interpreted as recognition by the states parties to the Convention of the right to use or threaten the use of nuclear weapons by one state against another, which is in direct opposition to the provisions and spirit of the Treaty on the Prohibition of Nuclear Weapons.

It is necessary, in our opinion, to initiate the Conference of states which are parties to the Convention with a view to deleting clause 4 of Article 4 of the Convention.

States which are parties to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques dated May 18, 1977, need to convene the Conference and recognize that, in accordance with Article 1 of this Convention, nuclear weapons are illegal and should be prohibited.

Thus, Article 1 of the Convention states: “1. Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. 2. Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article” [29].

Out of the states that possess nuclear weapons de jure and de facto, the United Kingdom, Russia, the USA, China, India and DPRK are parties to this Convention.

Adoption of the aforementioned priority measures will make it possible to exert effective pressure on the “nuclear five” to fulfill their obligations under Article VI of the NPT and help strengthen and advance the new Treaty.

V. Conclusion

The Treaty on the Prohibition of Nuclear Weapons has a number of shortcomings, due to the poor preparation of the initial text of the draft Convention, which was submitted for discussion at the Conference on Negotiations on the draft TPNW. Finalization of the text of the Treaty was carried out by negotiators under a severe time pressure, which did not allow the effective study of significant gaps in the formulation of provisions on the prohibition of certain aspects of nuclear weapons activities and the identification of effective mechanisms for verification of the Treaty.

The absence of the nuclear-weapon states and their allies, which actually boycotted the work of the Conference, did not contribute to the successful conduct of the talks.

The possibility of practical implementation of the TPNW in the foreseeable future is also doubtful, which is related to the rather tough and unambiguous statements by the nuclear- weapon states and their allies that the Treaty is not acceptable to them.

Nevertheless, the entry of the TPNW into force will have a tangible impact on the process of nuclear disarmament, placing nuclear weapons de jure off-limits, which in turn will affect many other documents of international law.

The adoption of the TPNW will gradually make it possible to “squeeze out” Ofintemational relations the threat and the very possibility of using nuclear weapons, and thereby bring closer to the common goal of building a world free of nuclear weapons.

REFERENCES:

1. Смотрите рабочий документ Центра международной безопасности и политики ко второй сессии переговоров по выработке юридически обязывающего инструмента по запрещению ядерного оружия: https://s3.aniazonaws.comAuioda-web/wp- content/uploads/2017/06/A-CONF.229-2017-NGO-WP.31-English-by-Centre-for-hitl-Security-and-Policy2.pdf, а также выступления директора CISP А. Ахметова на двух сессиях переговоров в марте и июне-июле 2017 года: http://www.reacliiiigcriticalwill.org/iiiiages/ docimients/Disannament-fora/nuclear-weapon-ban/statemeiits/31%20March%202017%20CISP.pdf и http://www.reachingcriticalwill. org/iiiiages/docimients/Disaniiament-fora/nuclear-weapon-ban/statements/21.Iime_CISP.pdf
2. United Nations General Assembly document A/CONF.229/2017/8, Treaty on the Proliibition OfNuclear Weapons, 7 July 2017// http://undocs.Org/A/CONF.229/2017/8
3. SignatureZratification status of the Treaty on the Prohibition OfNuclear Weapons// http://www.icanw.org/status-of-the-treaty- on-tlie-prohibition-of-nuclear-weapons/
4. Voting record// http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/nuclear-weapon-bari/documents/ voting-record.pdf
5. Report of the Credentials Committee//http://undocs.Org/A/CONF.229/2017/7
6. News in brief // Nuclear Ban Daily, 16 June 2017, Vol. 2, No. 2 // http://www.reachingcriticalwill.org/images/documents/ Disarmament-fora/nuc Iear- weapon-ban/reports/NBD2.2 .pdf
7. Model Nuclear Weapons Convention, United Nations General Assembly document A/62/650, 18 January 2008 // http:// imdocs.org/A/62/650
8. US Ieadsboycott of UN talks Onnuclearweaponsban_jAl Jazeera, 28 March 2017 // http://www.aljazeera.coin/news/2017/03/ leads-boycott-talks-nuclear-weapons-ban-170327191952287.html
9. Statement by H.E. Mr. Nobusltige TAKAMIZA WA, Ambassador Extraordinary and Plenipotentiary, Pennanent Representative of Japan to the Conference on Disannament at the High-level Segment of the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, 27 March 2017 // http://www.reacltingcriticalwill.org/ images/documents/Disannament-fora/nuclear-weapon-ban/statements/27March_Japan.pdf
10. United Nations General Assembly document A/71/450, Report of the First Conmiittee, 9 November 2016 // https:// documents-dds-ny.un.org/doc/UNDOC/GEN7N16/373/79/PDF/N1637379.pdf/OpenElement, page 38
11. Joint Press Statement from the Pennanent Representatives to the United Nations of the United States, United Kingdom, and France Following UieAdoption of a Treaty Baiuiing Nuclear Weapons, 7 July 2017 //https://usun.state.gov/reniarks/7892
12. NorthAtlantic Council Statement OiitlieTreaty OntlieProhibition OfNuclearWeapons, 20 September 2017 H https://www. nato. int/cps/en/natohq/news_l 46954 .htin? selectedLocale=en
13. Statement by The Netlierlands, 28 March 2017 // http://www.reachingcriticalwill.org/iniages/docunients/Disannanient- fora/nuclear-weapon-ban/statements/28March_Netherlands.pdf
14. Draft Convention on the Prohibition OfNuclear Weapons, 22 May 2017 // http://www.reachingcriticalwill.org/iniages/ dociunents/Disannainent-fora/nuclear-weapon-ban/dociunents/CRPl.pdf
15. Statement by H.E. Dell Higgie Ambassador for Disannainent of New Zealand, 28 March 2017 // http://www. reachingcriticalwill.org/iniages/docunients/Disannanient-fora/nuclear-weapon-ban/statenients/28March_NZ-Tl.pdf
16. UnitedNations GeneralAssenibly document A/CONF.229/2017/8, Treaty on the Prohibition OfNuclearWeapons, 7 July 2017// http://undocs.Org/A/CONF.229/2617/8
17. News in brief //Nuclear Ban Daily, 19 Jiuie 2017, Vol. 2, No. 3 //http://www.reachingcriticalwill.org/iniages/docunients/ Disannanient-fora/nuclear-weapon-ban/reports/NBD2.3.pdf News in brief // Nuclear Ban Daily, 20 Jiuie 2017, Vol. 2, No. 4 // http://www.reachingcriticalwill.Org/iniages/docunients/Disannanient-fora/nuclear-weapon-ban/reports/NBD2.4.pdf
18. News in brief //NuclearBan Daily, 6 July 2017, Vol. 2, No. 13 //http://www.reachingcriticalwill.org/iniages/docunients/ Disannament-fora/nuc Iear- weapon-ban/reports/NBD2.13 .pdf
19. Newsinbrief //NuclearBanDaily, 19 June 2017, Vol. 2, No. 3 // http://www.reachingcriticalwill.org/iniages/docunients/ Disannanient-fora/nuclear-weapon-ban/reports/NBD2.3.pdf
20. Argiunents For Including Transit In The Nuclear Ban Treaty, AlimzhanAklunetov // Nuclear Ban Daily, 28 June 2017, Vol. 2, No. 9 // http://www.reacliingcriticalwill.Org/iniages/docunients/Disannanient-fora/nuclear-weapon-ban/reports/NBD2.9.pdf
21. IAEA General Conference document GC(61 )/9, Aniendnient to Article VI of the Statute, Report by the Director General, 20 July 2017// https://www.iaea.org/About/Pohcy/GC/GC61/GC61Docunients/Enghsli/gc61-9_en.pdf
22. ModelNuclearWeapons Convention, UnitedNations GeneralAssenibly document A/62/650, 18 January 2008 //https:// dociunents-dds-ny.iui.org/doc/UNDOC/GEN/N08/213/77/PDF/N0821377.pdf? dpenElement
23. Treaty on the Non-Proliferation OfNuclear Weapons //https://www.un.org/disarnianient/wnid/nuclear/npt/text
24. Newsinbrief //Nuclear Ban Daily, 21 June 2017, Vol. 2, No. 5// http://www.reachingcriticalwill.org/iniages/docunients/ Disamianient-fora/nuclear-weapon-ban/reports/NBD2.5.pdf News in brief // Nuclear Ban Daily, 6 July 2017, Vol. 2, No. 13 // http://www.reachingcriticalwill.org/iniages/docunients/Disannanient-fora/nuclear-weapon-ban/reports/NBD2.13 .pdf
25. 26News in brief //NuclearBanDaily, 20 June 2017, Vol. 2, No. 4 // http://www.reachingcriticalwill.org/iniages/docunients/ Disannanient-fora/nuclear-weapon-ban/reports/NBD2.4.pdf
26. Newsinbrief //NuclearBanDaily, 19 June 2017, Vol. 2, No. 3 // http://www.reachingcriticalwill.org/iniages/docunients/ Disannanient-fora/nuclear-weapon-ban/reports/NBD2.3.pdf (page 8). News in brief //Nuclear Ban Daily, 6 July 2017, Vol. 2, No. 13// http://www.reachingcriticalwill.org/iniages/docunients/Disannanient-fora/nuclear-weapon-ban/reports/NBD2.13.pdf. News in brief //Nuclear Ban Daily, 28 June 2017, Vol. 2, No. 9 // http://www.reacliingcriticalwill.org/iniages/docunients/Disamianieiit- fora/nuc Iear- weapon-ban/reports/NBD2.9 .pdf
27. United Nations General Assembly document A/51/218, Advisory Opinion of the Inteniational Court of Justice on the legality of the threat or use of nuclear weapons, 15 October 1996 // https://undocs.Org/A/51/218 (pp. 36-37)
28. Inteniational Convention for the Suppression of Acts of Nuclear Tenorisni // https://treaties.un.org/doc/db/terrorism/ english-18-15.pdf
29. Convention on the Prohibition OfMilitary or Any Other Hostile Use OfEnvironmental Modification Teclmiques // http:// www.un-documents.net/enmod.htin