Can the Treaty on the Prohibition of Nuclear Weapons Protect Japan?

SANO Toshio

The Treaty on the Prohibition of Nuclear Weapons (hereafter the Prohibition Treaty) denies the concept of nuclear deterrence. Once Japan accedes to the Treaty, Japan will be obligated to withdraw from the U.S. extended nuclear deterrence (nuclear umbrella), which constitutes the main pillar of Japan’s security policy, and thus become “unarmed” in nuclear terms in the severe security environment in Northeast Asia. Therefore, the Prohibition Treaty cannot be a policy option for Japan now. On the other hand, lessons should be drawn from various issues raised by the Prohibition Treaty, and the legitimacy of the NPT (the Treaty on the Non-Proliferation of Nuclear Weapons) should be maintained to ensure the balanced implementation of its three pillars (nuclear disarmament, nuclear non-proliferation, and peaceful use of nuclear energy).

On January 22, 2021, the Prohibition Treaty came into force. Although statistics are not available, many Japanese seem to feel what might be called righteous anger, “Why can’t Japan, the only country that suffered atomic bombings in war, enter the Prohibition Treaty?” In this article, as a person who was directly involved in the establishment negotiations of the Prohibition Treaty in Geneva, I will respond to the question, and consider a couple of issues associated with nuclear disarmament that emerged from the negotiation process.

The history of the establishment of the Prohibition Treaty began with the paragraph adopted in the 2010 NPT Review Conference, “Deeply concerned about the catastrophic humanitarian consequences of the use of nuclear weapons and all countries must comply with international humanitarian law at any time.” Afterwards, thus initiated “humanitarian process” became a surge of movement involving the international community. Having led this movement are nations that are outside the “Nuclear Umbrella” of the U.S. or the Soviet Union/Russia, such as Austria, Ireland, New Zealand, and Mexico. The movement reached its peak at the 2014 Humanitarian Conference in Vienna, where the “Austrian Pledge” was unilaterally announced. The purpose of the pledge was to “stigmatize”, “prohibit” and eventually “eliminate” nuclear weapons, and it was declared that a “legal gap” in the conventional international legal system must be filled to realize the abolition of nuclear weapons, and that it was imperative to negotiate a new legal instrument (implying the Prohibition Treaty) for this purpose. The Prohibition Treaty was negotiated after this
process and adopted only by the countries with the same orientation in the absence of nuclear-weapon States (those that tested a nuclear explosion before 1 January 1967), nuclear possessing states (India, Pakistan, North Korea, etc.) and countries dependent on nuclear deterrence for their security. The Netherlands was the sole country that attended the negotiating conference. It did so at the request of its Parliament.

What Are the Problems with the Prohibition Treaty?
Since its adoption, this Treaty has been criticized as “unrealistic” by nuclear- weapon States and nuclear possessing states, and extended deterrent countries. While the recent report that both Finland and Sweden are seriously considering the accession to NATO in response to the Russian aggression on Ukraine clearly shows that nuclear deterrence is imperative to protect sovereignty against a nuclear threat, I would like to elaborate more on the problems of the Prohibition Treaty in the following paragraphs.

First, the treaty denies the concept of nuclear deterrence. Article 1 prohibits the development, testing, production, possessing, acquisition, etc., of nuclear weapons and the “use” or the “threat to use” them. It also prohibits receiving any assistance from anyone, or to engage in such activities prohibited under this treaty. This means that once in the Prohibition Treaty, the country cannot seek nuclear protection. Let us look at a specific example. Assume a non-nuclear-weapon State receives nuclear intimidation from its neighbor with nuclear weapons. Implying the use of nuclear weapons, the neighbor threatens the State, saying, “This island is our territory, and if you continue to deny our claim, you will have serious consequences.” At that time, the non-nuclear-weapon State will ask its allied nuclear-weapon State for support. “I want you to restrain my neighbor’s nuclear intimidation with your nuclear deterrent.” However, once the country accedes to the Treaty, it cannot receive such protection. Furthermore, even in that case, the Prohibition Treaty does not provide any alternative remedy. Entering the Treaty means becoming
“unarmed” in nuclear terms in today’s severe security environment.

Second, NATO has nuclear-sharing arrangements, which have allowed several European countries and Turkey to place non-strategic nuclear weapons on their soil ever since the Cold War years, providing security through nuclear deterrence against the threat of the Soviet Union/Russia. However, should the tension ease internationally, and domestic public opinion in one of these countries lean toward the Prohibition Treaty, the obligations of the Treaty will take precedence over NATO obligations in accordance with Article 18, and the deployment of nuclear weapons on its territory will be prohibited. The North Atlantic Council, the supreme decision-making body of NATO published the following statement on September 20, 2017, the date of the signing of the Treaty. “The Prohibition Treaty, in our view, disregards the realities of the increasingly challenging international security environment. At a time when the world needs to remain united in the face of growing threats, in particular the grave threat posed by North Korea’s nuclear program, the treaty fails to consider these urgent security challenges.” Japan shares this concern with NATO.

Third, there is a shortcoming in the verification system for the disposal of nuclear weapons under the Prohibition Treaty. There are no clear procedures on how to verify the disposal of nuclear weapons and ensure that there is no “loophole”. The procedures now in place basically follow those of the Anti-Personnel Landmine Convention and the Cluster Munitions Convention, but it is not appropriate to apply similar procedures to the verification of nuclear weapons since nuclear weapons are strategic weapons that could determine the fate of a state. The verification of the dismantlement of nuclear weapons is no easy task. Its difficulty is eloquently illustrated by our experiences. Under the Strategic Arms Reduction Treaty (START), a bilateral arms control treaty between the U.S. and Russia, the two countries have struggled to confirm the dismantling of nuclear weapons despite satellite surveillance and mutual inspectors’ visits. In addition, inspection is so sensitive that it should be conducted only to the extent that it would not touch the confidential information of nuclear weapons. The involvement of nuclear-weapon States, therefore, is essential for the inspection of the dismantlement of nuclear weapons. The verification mechanism of the Prohibition Treaty is imperfect and insufficient. I have to say that the Prohibition Treaty rushed too much, with the favorable wind of humanitarianism at its back, to the ideal of prohibiting nuclear weapons and nuclear deterrence. It attempts to change the reality of the world where tremendous numbers of nuclear weapons still exist. The nuclear-weapon States and nuclear possessors as well as extended deterrent states, will not accede to the treaty.

What can we learn from the Prohibition Treaty?
What are the issues that the Prohibition Treaty poses to the international community?

First, the Prohibition Treaty questioned the effectiveness of the “progressive approach” of nuclear disarmament based on the NPT. Under the “progressive approach”, the NPT agreed to an early entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT), improvement of transparency in nuclear armament, early negotiation of the Fissile Material Cut-off Treaty (FMCT), early establishment of verification technology for nuclear disarmament and establishment of the WMD (Weapons of Mass Destruction) free zone in the Middle East. Proponents of the “progressive approach” must seriously reflect on the delay of these measures and come up with fresh proposals on the reform of the present disarmament machinery and nuclear disarmament packages.

Second, the Prohibition Treaty urged a shift in the concept of “security”. The argument is that nuclear explosions, whether intentional or accidental, would have severe consequences on a global scale that cut across national boundaries. The security of the whole world is at stake as well as that of the country in question. On the other hand, the international community is still structured on sovereign states, and is not sufficiently integrated to centrally manage nuclear weapons. Since no one can ensure the security of a country that has withdrawn from nuclear deterrence and thus become “unarmed”, the country will eventually have to defend itself. Therefore, it is premature to present “security of humanity” as an option for “national security”.

Third, the Prohibition Treaty raised doubts about the legitimacy of the NPT which has functioned as the cornerstone of international security for half a century. While nuclear disarmament, which has been promoted with the NPT up to now, has not progressed enough, the question of whether nuclear abolition can be realized while preserving the NPT, was at the root of the movement toward the Prohibition Treaty. However, for more than half a century since the era when nuclear chaos was feared, the NPT has imposed non-proliferation obligations on non-nuclear-weapon States, prevented the proliferation of nuclear weapons, and restricted the reckless action of nuclear-weapon States. Despite some twists and turns, the NPT has served as the cornerstone of international security without losing sight of its ultimate goal of nuclear abolition. We must not undervalue what the NPT has achieved to date. The swaying legitimacy of the NPT regime also obscures the “Grand Bargain” between the nuclear-weapon States and the non-nuclear-weapon States i.e., the latter’s commitment of no acquisition in exchange for the former’s sharing of benefits of peaceful nuclear technology as well as pursuit of nuclear disarmament aimed at the ultimate elimination of their nuclear arsenals. Countries advocating the “progressive approach” must maintain the legitimacy of the NPT, by demonstrating specifically that the NPT has contributed to nuclear non-proliferation, nuclear disarmament, and the peaceful use of nuclear energy.

The proponents of the Prohibition Treaty reiterated the issue of “nuclear deterrence and morality” throughout the negotiation process. In other words, they deny the concept of nuclear deterrence from the standpoint of morality that nuclear weapons cannot coexist with humans because of the dreadful devastation of nuclear explosions, which brings about ultimate inhumanity. Indeed, anti-personnel landmines and cluster munitions have been banned in the form of treaties in the international surge of humanitarianism since the late 1990s. These included victim support clauses and wore the color of the humanitarian treaties rather than disarmament treaties. However, it is inappropriate to discuss nuclear weapons in the same breath because one nuclear shot could determine the fate of a nation. Issues related to nuclear weapons or nuclear deterrence should not be dealt with only from the moral high ground. Certainly, since WWII, the international community has accomplished many achievements in various fields such as human rights, humanitarian issues, development issues, and climate change, and has contributed to the improvement of human welfare, supported by a groundswell of humanitarian and moral fervor. However, in the field of security, the international community is not yet “a society that can be managed only by high morality”, but rather it remains a society where the law of jungle still prevails. The era of international cooperation after the end of the Cold War is over and the world has entered a new era of “mega competition” among major powers. The time is not ripe for abandoning nuclear weapons. Rather, some countries are openly advancing nuclear programs, developing various missiles, and increasing the number of nuclear warheads. Under these circumstances, the Prohibition Treaty is too detached from reality. Deeply aware of the tragic consequences of nuclear attacks, we must do our utmost to ensure that such disasters will not be repeated. At the same time, we should continue to comply with our nuclear non-proliferation obligations and devote ourselves to the peaceful use of nuclear energy through strict IAEA safeguards.

(This article presents the opinion of individuals and does not represent the views of any organization. See more “Can the Nuclear Prohibition Treaty Protect Japan?” published from SHINZANSHA, April 2022)

SANO Toshio is the former Japanese Ambassador to the Conference on Disarmament and the Commissioner of the Japan Atomic Energy Commission.