Julian Marvin V.

Duba JD 2-3

Special Issues on International Law

I. Introduction

The Treaty on the Prohibition of Nuclear Weapons – adopted

by 122 nations on July 7, 2017 – is an international agreement

seeking to permanently ban nuclear weapons under international law.

On September 20, 2017,1 it was open for signature to all States.

Currently, there are 69 nations who signed the treaty while 19 states

have ratified the same. However, none of the nine nuclear powered

states2 voted for the adoption of the treaty.3

II. The Author’s Insight

The Nuclear Ban Treaty is an acknowledgement by majority of

nations that the use of nuclear weapons has disastrous

consequences for humans and the environment. Due to the dangers

these weapons possess, different nations agreed to prohibit the use,

1 http://www.icanw.org/status-of-the-treaty-on-the-prohibition-of-nuclear-weapons/
2 Nuclear arsenals. http://www.icanw.org/the-facts/nuclear-arsenals/
3 http://www.icanw.org/status-of-the-treaty-on-the-prohibition-of-nuclear-weapons/
 development, manufacture, possession and even acquisition of

nuclear weapons.4

However, the author is in the belief that as noble as its intention

may be, the treaty – as it stands today – is a deeply flawed

agreement between non-nuclear nations hoping for nuclear

disarmament because the treaty creates little to no obligations upon

the states actually possessing such weapons. This is due to the fact

that such states were not parties to the agreement.

This, however, does not mean that the author is against the

treaty. Even with its flaws, the Ban Treaty’s humanitarian goals

should held with great admiration. It is the author’s hope that the

treaty will help usher in the day of complete prohibition on nuclear

weapons.

Perhaps, an argument can even be made that ratifications by

States leading to a universal treaty might express an international

custom that would bind States that did not ratify the instrument. This

is pursuant to customary law which is another source of international

4 Article 1. Treaty on the Prohibition of Nuclear Weapons, 7 July 2017

 law – not less important than treaties – and is defined as “evidence of

a general practice accepted as law.” 5

III. The Treaty

None of the nine countries6 who possess nuclear weapons

were parties to the Ban Treaty. The US, UK and France even issued

a statement saying that they do not intend to sign, ratify or ever

become party to the treaty.7

Pursuant to the principles of international law, treaties are

generally binding only on the parties. Bernas stated that “their binding

force comes from the voluntary decision of sovereign states to

obligate themselves to a mode of behavior”8. Since none of the

nuclear powered states were parties to the treaty, it is not legally

binding to them. This would mean that – even with the adoption of the

Ban Treaty – no active nuclear weapons were banned because those

who actually possess these weapons are not obliged to disarm and

discontinue their production.

5 Article 38. Statute of the International Court of Justice

6 http://www.icanw.org/status-of-the-treaty-on-the-prohibition-of-nuclear-weapons/
7 https://usun.state.gov/remarks/7892

8 Bernas. Public International Law. 2009. p. 15

 However, while treaties are generally binding only on the

parties, the number of the contracting parties and the generality of the

acceptance of the rules created by the treaty can have the effect of

creating a universal law.9 In this light, ratifications by States leading to

a universal treaty might express an international custom that would

bind other States.

According to the International Court of Justice (ICJ), the “States

whose interests are specially affected” must participate in the practice

to create an international custom.10 Obviously, particularly interested

States are those possessing nuclear weapons. But, it can be argued

that States not possessing nuclear weapons also have a special

interest in creating the customary rule because of the risks and

threats of nuclear weapons on their nations. This means that these

nations are also specially affected by the prohibition on nuclear

weapons.

9 Bernas. Public International Law. 2009. p. 16

10 Specially Affected States Doctrine. https://www.cambridge.org/core/journals/american-journal-of-
international-law/article/speciallyaffecting-states-doctrine/A77B3C2A4BC4E8B632A3004B498DA10F
IV. Conclusion

The Ban treaty is an aspirational document that might one day

pave the way for complete nuclear disarmament. But as it stands

today, pursuant to international law, the biggest flaw of the Ban

Treaty is not binding nations which currently possess nuclear

weapons. However, as nations move forward and one day ratify this

treaty, establishment of a customary rule will perhaps bind, to some

extent, other nations.