Q8. (a) Critically examine the International Law relating to development and use of nuclear weapons with special focus on the Treaty on Prohibition of Nuclear Weapons (TPNW), 2017.

The international legal regime concerning nuclear weapons has evolved complexly, balancing national security interests of nuclear-armed states (NAS) with the global aspiration for disarmament and peace.

I. Pre-TPNW Legal Landscape

A. Early Efforts and Customary Law

• The use of nuclear weapons on Hiroshima and Nagasaki in 1945 highlighted the urgent need for international regulation.
• Early attempts at prohibition faced resistance from states possessing or developing nuclear capabilities.
• The UN General Assembly consistently affirmed the necessity of prohibiting nuclear weapons, contributing to the development of customary international law principles.

B. International Court of Justice (ICJ) Advisory Opinion (1996)

• In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ concluded that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, particularly the principles and rules of international humanitarian law.
• However, the Court could not definitively conclude whether the threat or use would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake. This ambiguity remains a significant point of contention.

C. Key Treaties

• The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 1968: This cornerstone treaty aims to prevent the spread of nuclear weapons and weapons technology, promote cooperation in the peaceful uses of nuclear energy, and pursue nuclear disarmament. It divides states into nuclear-weapon states (NWS - those that tested before 1967) and non-nuclear-weapon states (NNWS).
• The Comprehensive Nuclear-Test-Ban Treaty (CTBT), 1996: While opened for signature in 1996, it has not entered into force due to the non-ratification by certain key states. It prohibits all nuclear explosions, serving as a crucial arms control measure.
• Other treaties like the Treaty of Tlatelolco (Latin America) and the Pelindaba Treaty (Africa) established nuclear-weapon-free zones.

Despite these efforts, the NPT framework, while successful in limiting proliferation, has been criticized for the slow pace of disarmament by NWS and the inherent division it creates.

II. The Treaty on Prohibition of Nuclear Weapons (TPNW), 2017

A. Genesis and Objectives

• Negotiated under the auspices of the UN, the TPNW was driven primarily by NNWS, civil society organizations, and international humanitarian initiatives, aiming for a legally binding instrument to completely prohibit nuclear weapons.
• It entered into force on January 22, 2021.
• Main Objectives: To achieve the total elimination of nuclear weapons, prevent their development, testing, production, acquisition, possession, stockpiling, transfer, use, and threat of use.

B. Key Provisions

• Article 1: General Prohibitions - Binds states parties never under any circumstances to develop, test, produce, manufacture, acquire, possess, stockpile, transfer, use, or threaten to use nuclear weapons. It also prohibits stationing, installation, or deployment on their territory.
• Article 3: Declarations - Requires states parties to make declarations regarding existing nuclear weapon programs and relevant infrastructure.
• Article 4: Verification - Mandates the establishment of a verification regime to ensure compliance, although details are still being finalized and are less intrusive than IAEA safeguards for non-proliferation.
• Articles 5 & 6: Victim Assistance and Environmental Remediation - Unique provisions requiring states parties to provide assistance to victims of nuclear weapon use and testing and to undertake rehabilitation of affected environments.

C. Strengths of the TPNW

• Normative Power: It strengthens the global norm against nuclear weapons, stigmatizing them and reinforcing the arguments based on humanitarian consequences.
• Incremental Disarmament Step: It complements the NPT by focusing explicitly on prohibition and disarmament, potentially pressuring NWS.
• Inclusivity: It was negotiated with broad participation from UN member states, reflecting the majority view.
• Humanitarian Focus: Its emphasis on victim assistance and environmental remediation addresses the catastrophic consequences often sidelined in security-centric discussions.

III. Critical Examination: TPNW's Impact and Limitations

A. The Non-Participation Challenge

• The most significant limitation is the absence of all nine nuclear-armed states (P5 members: US, UK, France, Russia, China; plus India, Pakistan, North Korea, Israel) and most states under nuclear "umbrella" (e.g., NATO members, Japan, South Korea) from the TPNW.
• These states argue that the TPNW is incompatible with the security realities of the 21st century and undermines existing arms control frameworks like the NPT.
• Their non-participation severely limits the treaty's practical impact on global arsenals and the actual prohibition of development and use.

B. Relationship with NPT and Security Doctrines

• Proponents argue the TPNW fulfills the disarmament obligation under NPT Article VI; opponents argue it bypasses the step-by-step approach envisioned in the NPT and weakens the non-proliferation regime.
• The TPNW's absolute prohibition clashes directly with the nuclear deterrence doctrines maintained by NWS, which rely on the threat of use for national security.
• The ICJ's 1996 opinion, allowing for potential legality in extreme self-defence, contrasts sharply with the TPNW's categorical ban.

C. Verification and Enforcement

• While the TPNW includes a verification mechanism, it is less developed and potentially less robust than the IAEA safeguards system under the NPT, which focuses on preventing diversion of fissile material for weapons.
• Enforcement relies primarily on national implementation and peer pressure, lacking the strong enforcement mechanisms found in some other international treaties.

D. Development vs. Use

• Development: Legally, development is largely prohibited for NPT NNWS. The TPNW extends this absolute prohibition to all states parties, but its effectiveness hinges on universal adherence, which is currently lacking. NWS continue development under their own legal interpretations and security doctrines.
• Use: The TPNW prohibits use and threat of use unequivocally. This strengthens the normative prohibition beyond the ICJ's conditional stance. However, the NWS's reliance on deterrence means the TPNW does not currently alter their stance on the potential use of nuclear weapons in conflict scenarios.

E. A New Normative Framework?

The TPNW, despite its implementation challenges, succeeds in creating a strong legal and normative framework. It empowers a majority of states to declare nuclear weapons illegitimate and pushes the global discourse towards disarmament, potentially influencing future arms control negotiations and strengthening customary international law.

Feature	NPT (1968)	TPNW (2017)
Primary Goal	Non-proliferation, Peaceful Use, eventual Disarmament	Complete Prohibition and Elimination of Nuclear Weapons
Scope	Distinguishes NWS and NNWS; focuses on preventing spread	Universal prohibition for all states parties
Nuclear Weapon Possession/Use	Permitted for NWS (pre-1967); NNWS prohibited	Prohibited for all states parties under any circumstances
Disarmament Obligation	Article VI: NWS commit to pursue negotiations in good faith towards disarmament	Direct obligation for total elimination
Key Participants	Includes NWS (P5) and most NNWS	Signed/Ratified by majority NNWS; excluded by NWS and allies
Verification	IAEA Safeguards (focus on non-diversion)	Specific verification mechanism under TPNW (in development)
Humanitarian Aspect	Limited focus	Central focus (Victim Assistance, Environmental Remediation)