NATO’s two chief concerns about the TPNW can be summarized as: that the treaty does not reflect the contemporary security environment; and that it would undermine the NPT and broader cooperation towards nuclear disarmament.
Background: TPNW negotiations and approval at the UN
The evolution of the TPNW from proposal stage to negotiations was closely followed within NATO. Prior to any discussions about a new treaty, Norway supported the series of conferences on humanitarian impacts of nuclear weapons states, hosting the first one in 2013. Despite this, most of the Allies positioned themselves against the new treaty even before negotiations formally began in 2017. Although some Allies had participated in some of the conferences on the humanitarian impacts of nuclear weapons that preceded the TPNW negotiations, only one of the then 29 Allies – the Netherlands – decided to participate in the treaty negotiations. The other 28, together with a number of NATO partners, decided not to take part, and some Allies issued statements criticizing the draft.
The Netherlands positioned itself differently to other NATO Allies during the negotiations. As such, its national positions are worthy of particular consideration. An important reason behind the Netherlands’ decision to participate in the negotiations was a motion proposed in the States General (the Netherlands parliament) on 28 April 2016, urging the government ‘to devote itself actively’ and participate in the international negotiations. Moreover, at the time, the Netherlands was chairing the 2017 NPT Preparatory Committee in Vienna and needed to be fully aware of the range of disarmament processes. Notwithstanding its participation in the TPNW negotiations, the Netherlands still took the weighty decision to call a vote on the draft treaty, and to vote ‘no’; this was the only vote against the draft. The other NATO Allies, together with many NATO partners, had decided not to participate in the process and thus did not vote. In an explanation of the country’s vote, the Netherlands representative pointed to the incompatibility of the treaty with the country’s NATO obligations and its commitment to NATO, as well as to the ‘inadequate verification provisions’ and to the fact that the treaty ‘undermines the Non-Proliferation Treaty’. These reasons would ultimately be reflected in the Alliance’s statement on the TPNW. At the same time, the Netherlands also tried to strike a balance looking towards the future:
Back at NATO headquarters in Brussels, Allies were having lengthy discussions about how best to position themselves as regards the TPNW. The NAC statement’s timing – issued on 20 September 2017, the day the treaty was opened for signature in New York – was not coincidental. Rather, the statement was envisioned as a key move in NATO’s response to the TPNW. Its content was carefully negotiated during the intervening period between the UN vote and the opening of the TPNW for signature. As NATO’s then deputy secretary general, Rose Gottemoeller, put it in a meeting at the Vatican later that year: ‘Such statements are rare and an indication of how seriously the Alliance takes this debate.’ It was particularly rare – perhaps unprecedented – for the NAC to comment on a treaty that had not even entered into force and that its members had declared they did not support.
Although the 2018 Brussels Summit declaration featured two full paragraphs on nuclear policy, it did not mention the TPNW. Neither did the more concise outcome document of the 2019 meeting of NATO leaders in London. However, NATO’s three nuclear weapon states regularly make their position on the TPNW known. Secretary General Stoltenberg and other Alliance leaders also periodically address the TPNW. In November 2020, for example, at NATO’s Annual Conference on Weapons of Mass Destruction, Arms Control, Disarmament and Non-Proliferation, Stoltenberg said:
Most recently, the December 2020 NAC statement recalls that:
Concerns set out in the NAC statements
NATO’s concerns about the TPNW, as articulated in the NAC statements of September 2017 and December 2020, can be boiled down into two main points. First, the TPNW does not reflect the contemporary security environment – notably, the increase in global tensions over the past decade. The treaty would not achieve its aims because it fails to include the main threat actors within that environment. Second, the TPNW would undermine the NPT and broader cooperative efforts towards nuclear disarmament.
The two brief NAC statements did not much elaborate on the reasons behind these concerns. This has been both an advantage and a disadvantage. On the one hand, it is likely that the relative brevity of the statements helped achieve consensus. Moreover, they give officials a clear and concrete statement of policy to cite. On the other hand, the lack of elaboration of the arguments makes it more difficult to respond in real time to the pushback generated by the statements among TPNW supporters. This is particularly so when the arguments made are the result of fairly detailed legal analysis and tend be issued in the form of a ‘debunking of myths’. In short, the debate on the TPNW seems to be polarized into two basic camps, with much mutual rebutting of the other side’s arguments but little dialogue. In order to identify how this gap might be bridged, while avoiding more divisiveness, NATO’s concerns are worth unpacking and evaluating against the critiques.
The TPNW’s effectiveness in today’s security environment
One concern expressed in the NAC statements has to do with the security environment and NATO’s conclusion, mentioned above, that ‘conditions for achieving disarmament are not favourable today’. The relevant language from the 2017 statement reads:
The only specific situation referred to in the 2017 statement is the crisis around the nuclear programme pursued by North Korea, which is mentioned twice in the document. However, the statement recalls the 2016 Warsaw Summit, the communiqué of which listed ‘Russia’s destabilising actions and policies’. While the 2020 statement only refers to the ‘increasingly challenging international security environment’ in general terms, since 2019 NATO has mentioned China’s link to nuclear issues with increasing frequency.
NATO’s approach is based on the belief that security conditions and progress on nuclear disarmament are inherently interlinked.
NATO’s approach is based on the belief that security conditions and progress on nuclear disarmament are inherently interlinked. As the NAC put it in 2017: ‘Seeking to ban nuclear weapons through a treaty that will not engage any state actually possessing nuclear weapons will not be effective, will not reduce nuclear arsenals, and will neither enhance any country’s security, nor international peace and stability.’ Rather, the TPNW – if applied to NATO – would represent a type of unilateral nuclear disarmament that would not be rewarded by improvements in adversary behaviour or other positive changes in the international security environment.
The main critique of NATO’s position stems from the same notion about interlinkage, but draws an opposite conclusion. In fact, TPNW supporters might not necessarily disagree with NATO’s threat assessment about Russia and North Korea. Rather, their argument is that the two tracks (i.e. nuclear non-proliferation and disarmament) need to move more in parallel. Security conditions will never be wholly favourable for nuclear disarmament. Instead of taking the sequential approach of focusing on the need for security conditions to improve in the first instance, disarmament progress can itself create better security conditions and thus should be pursued. TPNW supporters see the treaty as having symbolic value, serving as a moral compass and thus a source of indirect influence on the future trajectory of nuclear disarmament.
In the foreseeable future, it remains unlikely that TPNW supporters will be able to convince NATO Allies to change their assessment of the prevailing international security environment. NATO Allies would welcome a concerted effort by civil society to pressure Russia, China and North Korea – for example – to help ameliorate the international security environment. Instead, there is a frustration in NATO circles that TPNW advocacy groups seem to focus mostly on Western democracies.
At the same time, waiting for an improvement in security conditions might be increasingly perceived as unrealistic. After all, progress in arms control and disarmament has been achieved under difficult conditions in the past, and NATO regularly reaffirms its willingness to continue engaging in the process. However, the risk is that NATO’s current stance of reaffirming commitments without commensurate action could be perceived as a veiled attempt to preserve the status quo. This could undermine the unity of the international community in facing threats that NATO and the other countries that rely on extended deterrence are concerned about. A lack of unity could in turn embolden adversaries to create further instability. From the perspective of both TPNW supporters and sceptics, the challenge will be how to ensure that this does not occur.
The TPNW’s impact on the NPT
In addition to the question of the TPNW’s effectiveness in the current security environment, the NAC statements make an argument about the TPNW’s impact on the NPT. The relevant wording in the 2017 statement reads:
The 2020 statement echoes this language, emphasizing that the TPNW ‘risks undermining the global non-proliferation and disarmament architecture, with the NPT at its heart for more than 50 years, and the IAEA Safeguards regime that supports it’.
This argument – that the new treaty ‘risks undermining’ the NPT – merits further examination, as it loomed particularly large over NATO discussions and continues to be a prominent feature of both NATO’s criticism of the TPNW and subsequent responses by TPNW supporters and the scholarly community.
From a legal perspective, the link to the NPT is provided in Article 18 of the TPNW, which deals with the TPNW’s relationship with other agreements. It reads:
At first glance, this appears to be a ‘savings clause’ of the sort used in many international agreements. In this case, the ‘existing international agreements’ that are meant to be protected would certainly include the NPT. In fact, this seems to be precisely the intention, according to many people involved with the TPNW negotiations. The first draft of the TPNW contained a clear reference to obligations under the NPT.
The controversy has to do with the wording of the latter clause in Article 18 as it emerged after negotiations (‘where those obligations are consistent with the Treaty’). Among TPNW sceptics, this wording was seized on as evidence of ‘subordinating the NPT to the ban treaty’. According to this reading, the wording could also lead to conflicts of interpretation:
The wording, along with other reasons, gave rise to the only abstention on the TPNW vote, by Singapore. Several experts have written about this ambiguity and tried to provide more clarity, with the Swiss government’s 2018 report concluding that there is no legal conflict between the TPNW and the NPT. Yet questions remain about how there may be actual, specific conflicts between the TPNW and NPT. Any such conflicts may only become apparent in practice, now the TPNW has entered into force. In short, there seems to be an overall lack of trust around this language. One practical recommendation would be to have a dialogue including legal experts from both TPNW and non-TPNW states in order to identify the proper legal tools to analyse the relationship between the two treaties. Other expert commentators who have written about Article 18 could provide useful briefings to inform such a dialogue.
A fundamental concern for NATO seems more political than exclusively legal in nature: namely that the TPNW might come to be seen (at least by some) as a competing framework to the NPT, or even as an alternative to the NPT.
That said, even if the ambiguity in Article 18 could be addressed in a way that made lawyers comfortable, this would likely not be enough to dispel concerns about the TPNW undermining the NPT. This is because NATO’s more fundamental concern seems more political than exclusively legal in nature: namely that the TPNW might come to be seen (at least by some) as a competing framework to the NPT, or even as an alternative to the NPT. By enabling the creation of a potential alternative framework, the TPNW could allow a state party to reap the political and public relations benefits of joining the new treaty, while forgoing the robust safeguards standards that have been put in place by the International Atomic Energy Agency (IAEA) through the NPT process.
It is a common point made by TPNW sceptics that the ban treaty lacks credible verification mechanisms. Indeed, this criticism is at the core of NATO’s argument that the TPNW would not be effective. However, this view is contested by the supporters of the TPNW, and it is worth asking how this view regarding the provisions might go beyond just rendering the TPNW ineffective to actually undermine the IAEA.
In terms of safeguards, the TPNW requires states parties to have in place a comprehensive safeguards agreement with the IAEA (as in the NPT) but contains no obligation to negotiate and sign an Additional Protocol or the enhanced Small Quantities Protocol with the IAEA. Realizing there is a broad agreement that universalization of the Additional Protocol is a desirable goal, a compromise was necessary to achieving an agreement during the negotiations for the TPNW, in large part because the Additional Protocol is a voluntary arrangement and not legally required under the NPT.
As regards the verification of the elimination of nuclear weapons – an aspect that has not been addressed in any other treaty – Article 4 of the TPNW requires states parties to designate a competent international authority and offers two pathways for the verification of the disarmament process. The mechanisms are clearly underdeveloped. One important first step will be to identify and cooperate with a ‘competent international authority’ to put in place the necessary measures and safeguards to ensure the verified elimination of the nuclear weapons programme.
Confusion may arise, and may serve to undermine the IAEA, through the possibility of two potential ‘competent international authorities’ – one being the IAEA – being accorded different and possibly competing roles in a nuclear programme dismantling effort.
Given NATO’s stated support for the NPT, it would be against the Alliance’s interests to undermine existing safeguards. As a result, a practical recommendation would be for NATO to conduct more outreach about safeguards and verification issues in general, in an effort to raise awareness about the challenges associated with this aspect of disarmament. Article VI of the NPT commits states to ‘negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control’. Thus, any issue related to safeguards and verification should be part of the discussion.
Other potential NATO concerns
Several issues related to the TPNW that are relevant to debates regarding NATO’s position towards the treaty were not mentioned in the two NAC statements. This section discusses three of these issues:
- the TPNW’s incompatibility with existing NATO commitments;
- the effects of NATO’s work with partner countries; and
- potential secondary effects on NATO.
Allies: incompatibility with existing NATO commitments
While NATO Allies have levelled a number of criticisms against the TPNW, one overarching theme has been the notion that the TPNW is not compatible with their political, military and legal commitments related to the Alliance. The Netherlands explicitly cited such an incompatibility in voting against the TPNW in the UN General Assembly. A recent commentator concluded: ‘At present, membership in NATO and the nuclear ban treaty seem mutually exclusive.’ At the same time, by contrast, supporters of and academic commentators on the TPNW have argued that it would in fact be possible for a NATO Ally to be simultaneously party to the TPNW.
In light of ongoing domestic debates about the TPNW and/or issues such as the stationing of nuclear weapons on the territory of several NATO Allies, this question may have continued relevance, even if all NATO Allies are currently on record as opposing the treaty.
This discussion focuses on the meaning of various prohibitions contained in Article 1.1 of the TPNW, whereby:
It is undisputed that certain aspects of NATO nuclear policy, in particular the nuclear sharing arrangements, would be impossible to reconcile with the prohibition on stationing set out in Article 1.1 (g). At the same time, NATO policy has always required custody of stationed nuclear weapons to remain with the nuclear weapon state: this position predates the NPT, and the Alliance has consistently maintained that it is consistent with the NPT’s prohibition on transfer. It is an open question as to whether nuclear sharing arrangements could be similarly squared with the language of Articles 1.1(b) and (c) of the TPNW. But what about the more general commitments associated with NATO’s nuclear policy?
Article 1.1(d) of the TPNW provides that no State Party shall ‘Use or threaten to use nuclear weapons or other explosive nuclear device.’ There has been some recent scholarly analysis of whether adhesion to the policy of nuclear deterrence that relies in part on potential recourse to nuclear weapons could be considered a threat of the use of force. On balance, the mere adherence to a policy of deterrence seems too diffuse to meet the threshold for the threat of use of force under international law. This is in line with the 2020 NAC statement, which recalled that ‘Allies are determined to ensure that NATO’s nuclear deterrent remains safe, secure, and effective, and reject any attempt to delegitimise nuclear deterrence.’
However, the question does arise as to whether support for a policy of nuclear deterrence might fall within the scope of Article 1.1(e), which makes it a violation to ‘Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.’ This issue has been frequently framed by commentators as whether an Ally that joined the TPNW could continue to benefit from NATO’s nuclear deterrent provided under ‘nuclear umbrella’ arrangements. For example, a study from Harvard University concluded that the TPNW ‘requires a state party to renounce its nuclear umbrella status but does not stand in the way of alliances with states that continue to possess nuclear weapons’.
A group of Norwegian scholars has concluded, in a paper published by the Norwegian Academy of International Law in 2018, that:
In their analysis, the scholars point to Norway’s historic policy of not accepting nuclear-armed vessels into its waters during peacetime. Norway was, over time, able to use the Alliance’s consultation mechanisms to make its position understood without provoking a decision by other Allies to withdraw Norway from NATO’s nuclear umbrella.
This points to the distinction between politics and law. Although TPNW supporters often formulate their objections to NATO’s position by using legal arguments to illustrate the claim that the TPNW’s prohibitions can actually be reconciled with various activities that NATO Allies find valuable, the fact that a particular course of action might be a legally available option risks disregarding the potential political ramifications of such a move within NATO. The NAC statements of 2017 and 2020 make it clear that there is broad political agreement not to support the TPNW. It is difficult to separate the existence of a potentially legally available option for one Ally to change course from the political cost of doing so. As the Norwegian authors cited above concede, ‘[…] accession to the TPNW would probably be interpreted by some allies as a breach of alliance solidarity and a threat to NATO’s security and political cohesion’. It is difficult to see, for example, how an Ally that joined the TPNW could continue to participate in the NPG. Even if the Ally itself considered this appropriate, other NATO members may have reservations.
Overall, within the context of the Alliance, the reality is that political commitments carry a heavy weighting. The content of political commitments is discussed much more frequently than are the legal obligations associated with NATO membership, which are formulated at a rather high degree of generality. Political commitments are part of signalling a coherent nuclear deterrence posture to the adversary. We could expect efforts to impose a high cost on an Ally that was considering joining the TPNW. Indeed, NATO Allies have the means necessary to impose costs on an Ally considering such a course of action, including on issues unrelated to nuclear weapons but of great importance to NATO generally, or to that Ally in particular. It would ultimately be for the Ally in question to determine whether it could bear that cost.
Partners: cooperation with NATO
While NATO Allies have decided not to join the TPNW, and have been joined in this position by most NATO partners, several partners have to date decided to become party to the TPNW. Regardless of their decision, all partners have had to assess whether joining the TPNW would conflict with their commitments to NATO.
NATO’s position is that its partners are free to determine the security arrangements that best meet their needs. NATO partnerships are therefore a flexible tool. Specific work with partners is carried out based on mutually agreed cooperation plans. These are agreed between the partner country and the NAC, meaning that each Ally would have the ability to block consensus on a proposed partnership activity. These plans are regularly updated and submitted to the NAC for further approval.
From NATO’s perspective, therefore, if a partner becomes party to the TPNW, this does not mean in principle that it is prevented from continuing its partnership with NATO. The question would be a political one: do Allies have the same appetite for partnership after the partner joins the TPNW? This would have to be assessed on a case-by-case basis and would depend on many factors, including the nature of the partnership activity being contemplated. Since current partnership activities do not have a nuclear policy dimension, one might ask why some partners were concerned about the TPNW’s impact on them, while others were not. The answer may lie less with the content of the partnership activity than with a less specific fear that support for the TPNW would ‘spill over’ into the relationship in a way that could make NATO more wary of cooperation with that partner in the future. This question is difficult to assess in general terms, and would depend to some extent on how the partner decided to balance the weighting given to its own support for the TPNW against its own desire to continue cooperating with NATO.
A more concrete question could arise in connection with a potential future collective defence operation, if a situation had developed to the point where the survival of NATO Allies would be at stake. An example of such an in extremis scenario would be a large-scale collective defence response to counter aggression against Allies along NATO’s eastern frontier. Could a state party to the TPNW actively participate in such an operation, in which the use or deployment of nuclear weapons might be considered by the NAC? Some commentators consider that the TPNW would not prevent participation by a party: ‘Parties to the TPNW could participate in joint military operations with a nuclear weapon state without contravening the treaty, provided there is no nexus between a particular task and an activity prohibited by the TPNW such as […] stationing’. There is no reason to doubt this assessment, at least in theoretical terms. But assessing how it would play out in practice would depend on what exactly would be asked of the partner (or what the partner would want to offer). Once again, stationing of nuclear weapons is a clear-cut case, but how would the analysis play out with other forms of cooperation? Overflight might be a more problematic example, and one that could easily arise, given the geographical context.
NATO Allies with partners should discuss ways to continue their cooperation in the nuclear realm in a manner that would not conflict with those states’ TPNW obligations nor be inconsistent with the treaty’s object and purpose.
The Swiss government’s 2018 report on the TPNW provides considerable food for thought for NATO partners. It concludes that Switzerland’s disarmament policy is in accord with the TPNW’s ultimate objective; however, that the risks in acceding to the treaty at this time outweigh the potential benefits of ratification of the treaty. This is in part because ‘Switzerland’s security is inextricably linked to that of its neighbours and, due to its location, particularly to that of NATO, [thus] nuclear weapons play a part in its security.’ The Swiss analysis also highlights the unknown economic impact of the TPNW, the lack of increased safeguards requirements, and its relationship to the NPT as reasons not to support the TPNW at this time. The report finds that the TPNW does not limit military cooperation unless it is directly related to ‘developing, modernising, acquiring or using nuclear weapons’.
As a practical recommendation, NATO Allies with partners should discuss ways to continue their cooperation in the nuclear realm in a manner that would not conflict with those states’ TPNW obligations nor be inconsistent with the treaty’s object and purpose. The issues raised in the Swiss report and others should be included on the agenda of such dialogues. It might also be worth drawing on experience with similar situations where a treaty contained restrictions on cooperation that were successfully reconciled and balanced with requirements associated with continued multinational military cooperation. Pertinent examples would be the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (the Ottawa Treaty), and the 2008 Convention on Cluster Munitions.
Secondary effects
Another issue that was not addressed in the 2017 and 2020 NAC statements has to do with a range of potential secondary effects that the TPNW might have on NATO Allies and partners, due to commercial links between TPNW and non-TPNW states. Even if NATO Allies did not become parties to the TPNW, could there be an unexpected impact on NATO procurement, even where procurement projects were not related to nuclear weapons?
Industrial cooperation might fall within the scope of prohibited activity under Article 1 of the TPNW, most likely through the prohibition on assistance in Article 1.1(e). Article 5(2) is designed with a broad reach to cover all persons, including corporations and individuals, under the jurisdiction or control of a party to the TPNW. This might include multinational corporations based in other states but with jurisdictional links to TPNW states parties. Since NATO itself does not have nuclear forces, the issue of procurement of items for uses directly related to nuclear weapons (for example, components of a system) would not arise. However, the entire nuclear infrastructure is essentially dual-use in its nature. The bases that support the dual-capable aircraft (DCA) that some Allies contribute to the Alliance are also used for non-nuclear-related purposes. DCA components are manufactured all over the world. The scope of this prohibition might be difficult to define in such areas. The same difficulty might apply to equipment that is less obviously related to nuclear weapons. One example would be information and communications technologies that are not directly related to nuclear weapons but that are part of broader NATO systems (e.g. command, control and communication) that might be linked in some ways to NATO’s nuclear weapon-related assets. It might therefore be difficult for NATO to convince an outside commercial partner that offering NATO its technology, even if for unrelated purposes, might not somehow fall foul of the Article 1.1(e) prohibition on assisting, encouraging or inducing.
One practical recommendation would be for NATO to conduct a study of potential impact in the procurement areas, including on possible mitigation measures such as supplier assurances. Such a study would be a good way to involve appropriate partners.
