By Catherine Maia and Jean-Marie Collin*

Current generations, who have not experienced the fear of a direct nuclear confrontation, have forgotten this feeling of anguish that, after the explosion of atomic bombs in Japan, was omnipresent in presidential speeches, films, music and even civil protection programmes. Yet, today, we are in the same situation, maybe even worse, and too few are aware of the permanence of the risks. Ten years ago, on April 20, 2010, the then President of the International Committee of the Red Cross (ICRC), Jakob Kellenberger, delivered a speech entitled “Bringing the era of nuclear weapons to an end”, which initiated a Copernican revolution in the fight against the bomb. The humanitarian initiative was then open.

The reflection of the French philosopher Thérèse Delpech seems unfortunately true: “Humanity does not learn much from events that do not happen. It needs to make mistakes, and even sometimes experience disasters, because they are the ones who force it to take new paths”[i]. According to the Doomsday Clock, we are only 100 seconds from this mistake. In the event of a nuclear detonation, everything can be destroyed. And do not look for health personnel, facemasks or hand sanitizer. It will be too late.

Fear was so intense throughout the Cold War period, marked by a real arms race, that scientists sought to alert world leaders to the consequences of a nuclear war. The so-called nuclear winter theory was born. But the “calculations” were based on the assumption of a major nuclear war. In 2014, on the basis of new climate models and new data, scientists from the International Physicians for the Prevention of Nuclear War, on their study on “Nuclear Famine: Two Billion People at Risk?”, demonstrated that it would be sufficient to have, not a massive nuclear exchange, but only a hundred weapons to cause famine, potentially affecting up 2 billion human beings. Paradoxically, while the dangers are known, all the nuclear powers are modernizing or renewing their systems. France, for example, has planned to increase its deterrence budget by more than 60% over the 2019/2025 period.

However, ten years ago, a big change happened. The legal vacuum left by what is considered the cornerstone of the nuclear non-proliferation regime, the Non-Proliferation Treaty (NPT), was openly challenged.

Even if the birth of this movement was due to a combination of factors, we can certainly see a trigger in the Jakob Kellenberger’s appeal, launched on 20 April 2010, when he declared: “In the view of the ICRC, preventing the use of nuclear weapons requires fulfilment of the existing legal obligations to pursue negotiations aimed at prohibiting and completely eliminating such weapons through a legally binding international treaty”[ii].

The Final Document of the 2010 NPT Review Conference, accepted by consensus by the 188 States Parties, included the following important sentence: “The Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for all States at all times to comply with applicable international law, including international humanitarian law”[iii]. These are the words that would trigger what is called the “Humanitarian Initiative”.

A dynamic was then created in the disarmament bodies of the United Nations: three major intergovernmental conferences (Oslo in 2013, Nayarit and Vienna in 2014) on the humanitarian consequences of nuclear weapons; two Open-Ended Working Groups Taking Forward Multilateral Nuclear Disarmament Negotiations (in 2013, 2016), a strong Austrian pledge, firm speeches, and resolutions of the United Nations General Assembly on “The Humanitarian Consequences of Nuclear Weapons” supported by more and more countries over time.

The objective was to place the human dimension at the centre of the theme of deterrence, and to explain the reality of the humanitarian, health, environmental and economic consequences in the event of a nuclear detonation of any kind (by accident, miscalculation, intentional act). The main conclusion that emerged was that it is unlikely that any State, or international organisation, would be able to respond to the immediate humanitarian emergency caused by the detonation of a nuclear weapon, and that it is not possible to foresee such capacities, even if the will to face it exists.

The law is a constantly evolving process, but the law can only progress if its actors find an interest in it. This is even truer for international law, where States are rarely guided by the interests of the international community as a whole. Lately, the dialogue established with NGOs, academics and nuclear disarmament champion-States has made this possible.

In 2015, on the occasion of the 70th anniversary of the first use of nuclear weapons, the ICRC president, Peter Maurer, rightly recalled that if nuclear weapons are “often presented as promoting security, particularly during times of international instability”, in reality, “weapons that risk catastrophic and irreversible humanitarian consequences cannot seriously be viewed as protecting civilians or humanity as a whole”. However, “nuclear weapons are the one weapon of mass destruction on which we are still confronted with a legal gap” [iv]. The legal vacuum, often decried in the regime organized by the NPT, suddenly seemed possible to fill by a global and comprehensive ban of nuclear weapons.

It is precisely this awareness that led the United Nations General Assembly, in December 2016, to vote for Resolution 71/258 on “Taking forward multilateral nuclear disarmament negotiations”. This Resolution was to allow the opening, in 2017, of “a United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination”.

For the first time since the adoption of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) in 1995, the international community opened the possibility for negotiating and adopting a new standard on nuclear weapons. With the support of a huge number of NGOs and the International Campaign to Abolish Nuclear Weapon (ICAN), on 7 July 2017, by a majority of 122 States, the Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted with the aim of strengthening article VI of the NPT.

The TPNW will enter into force after reaching the threshold of 50 ratifications, thereby creating a new international standard of positive law against nuclear weapons. To date, 36 States have ratified it and 81 have signed it.

In less than ten years, States, NGOs and individuals have opened a new path for nuclear disarmament. The TPNW needs continued and strong support. It is time for States that have launched their national ratification process to speed it up. It is time to finally put an end to this deadly dependence and to open a new era where humanity will be at the centre of our security.

*Catherine Maia, Professor at the Faculty of Law and Political Science of the Lusófona University of Porto (Portugal), Visiting Professor at Sciences Po Paris (France)

Jean-Marie Collin, Nuclear Disarmament Expert, Associate Researcher at the GRIP, Spokesmen for ICAN France

[i] Delpech, T. (2012) Nuclear Deterrence in the 21st Century, Santa Monica, USA: Rand Corporation.

[ii] Statement by Jakob Kellenberger, President of the ICRC, to the Geneva Diplomatic Corps, Geneva, 20 April 2010