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International Law

Human rights violations inside EU

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What is the Ostrich Protocol?
How the EU member states play ostrich when it comes to human rights violations inside EU?

The Treaty on the European Union, in its current format also known as the Lisbon Treaty, as well as the EU Charter of Fundamental Rights claim to establish an area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights[1]. That sounds perfect. After centuries of inhuman treatment of people very often by their own governments, culminating in the tyrannies of communism and Nazism in the 20th century, EU citizens should be able to feel safe from brutal attacks and illegal operations of a violent state, if not ….If they are not refugees from another EU member state and they do not try to look for protection because they were subject in their own state to political persecution, inhuman treatment or even torture.

The Geneva Convention about status of and asylum for refugees, persons subject to political persecution, is one of the great international achievements in the field of human rights. The European Union as a successful project of peace, freedom and justice promises in Art.18 of its Charter that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention..[2]” But why is this guarantee denied when the asylum seeker comes from an EU country?

The EU Treaty consists not only of the main articles, but also of some so-called “protocols” which are “annexed” to the Treaty by the “high contracting parties”, i.e. the Member States. One of these Protocols is PROTOCOL (No 24) ON ASYLUM FOR NATIONALS OF MEMBER STATES OF THE EUROPEAN UNION which reads as follows:

The high contracting parties,

WHEREAS, in accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights,

WHEREAS pursuant to Article 6(3) of the Treaty on European Union, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union’s law as general principles,

WHEREAS the Court of Justice of the European Union has jurisdiction to ensure that in the interpretation and application of Article 6, paragraphs (1) and (3) of the Treaty on European Union the law is observed by the European Union,

WHEREAS pursuant to Article 49 of the Treaty on European Union any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,

BEARING IN MIND that Article 7 of the Treaty on European Union establishes a mechanism for the suspension of certain rights in the event of a serious and persistent breach by a Member State of those values,

RECALLING that each national of a Member State, as a citizen of the Union, enjoys a special status and protection which shall be guaranteed by the Member States in accordance with the provisions of Part Two of the Treaty on the Functioning of the European Union,

BEARING IN MIND that the Treaties establish an area without internal frontiers and grant every citizen of the Union the right to move and reside freely within the territory of the Member States,

WISHING to prevent the institution of asylum being resorted to for purposes alien to those for which it is intended,

WHEREAS this Protocol respects the finality and the objectives of the Geneva Convention of 28 July 1951 relating to the status of refugees,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Sole Article

Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;

(b) if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national;

(c) if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national;

(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.”

After very nice introducing words about “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms constitute part of the Union’s law as general principles … and any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,” the disgraceful truth comes at the end: whatever happened or could happen with the applicant in his country, “the application shall be dealt with on the basis of the presumption that it is manifestly unfounded”!

This Protocol (no 24) stands not only in contradiction to itself and the idea of the European Union and its fundamental documents, Treaty and Charter on Fundamental Rights, but is also a severe violation of international law. The Geneva Refugee Convention[3], the Universal Declaration of Human Rights[4] and the European Convention on Human Rights[5] have to be respected by the European Union which should not be “a superstate where international laws which have protected individuals for decades are discarded.”[6] It is the disgraceful “ostrich protocol no.24” which should be discarded immediately by the European Council.

We certainly don’t live in a perfect world. Despite the Universal Declaration of Human Rights of the United Nations, the European Convention on Human Rights of the Council of Europe, the Charter of Fundamental Rights of the European Union, Conventions against torture and inhuman treatment and other International binding covenants human rights violations, torture, illegal detentions, extrajudicial executions etc. are still part of the daily life of too many people. Millions of people are leaving their home country to escape from political persecution, police and military brutality and other unbelievable atrocities[7]. To protect such people the international community set up already in 1951 the Geneva Refugee Convention, the key legal document in defining who is a refugee, their rights and the legal obligations of states, in particular to grant “asylum” to refugees. All member countries of the European Union are party to the Geneva Convention. In addition the EU Charter of Fundamental Rights states in its Art.18 that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”. That looks like the Union is endorsing international obligations of its member states under the Geneva Convention.

Therefore anybody subject to political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial etc. should at least get asylum in an EU member country. Fortunately the description of the sad situation of millions of people does not apply to the European Union and its member states. And certainly everybody should desire that this situation does not even apply to a single individual within the European Union. But, is there a guarantee? Or is it just wishful thinking that there will be this guarantee? Could it be that “the high contracting parties” and there representatives, i.e. the heads of state and government of the EU member states base their decisions on wishful thinking? Most likely not, therefore we have to ask what else could be the reason for them to “play ostrich” and put, metaphorically speaking, their heads into the sand for not seeing the human rights violation by a partner state in the Union? Among people who know the background of the evolving of Protocol no.24 it is also called the “Aznar Protocol”[8]. As clearly stated by an expert of UNHCR, Karen Landgren, protocol no. 24 (and its assumption that “Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”) “is the product of a political deal, supported by Spain as the initiator and all those countries who needed the support of Spain in other EU matters”[9].

That Protocol (no 24) had a purely political purpose is also demonstrated by the fact that it refers to nationals of a member state as citizens of the EU. That means that the protocol and therefore the automatic rejection of an asylum request does not apply to non-nationals of an EU member state who seek asylum because of persecution in a member state, for example stateless persons with residence in the EU. What is the reason for discrimination of EU citizens by the European Union? As described by Karen Landgren, Protocol (no24) is not based on legal ground but on pure political decision.

If one believes that political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial could not happen on EU territory one should look to the judgments of the European Court of Human Rights and to the reports of Council of Europe’s Commission for the Prevention of Torture. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe adopted a report of MP Marieluise Beck, member of the German delegation to the Assembly, on “Threats to the Rule of Law in Council of Europe Member States” including also members of the European Union[10]. The report, based on facts, realizes politically-motivated prosecutions of political opponents, journalists and civil society activists as well as cover-ups of crimes committed or instigated and organized by politicians! “Serious problems related to the rule of law exist in several member states”. Politically motivated prosecution happens according to the Beck-report and is certainly one of the main reasons to seek asylum. And those who uncover crimes committed or instigated and organized by politicians are obviously under danger in the country where this happens. As one cannot exclude that the same politicians who committed, instigated or organized the uncovered crimes have the power to issue an European warrant, the whistleblowers can be prosecuted on the basis of wrong or fabricated accusations throughout Europe easily and the European partner states are obliged to help, to help the perpetrators. But this is exactly what asylum if well founded should avoid. But currently asylum for an EU citizen is excluded by the Ostrich Protocol. Of course, there were legal remedies, such as appeal to the European Court of Justice or the European Court of Human Rights. But everybody knows very well that these remedies take time, long time. In the meantime the asylum applicant may be extradited to the country of his persecution with unknown consequences.

Among 28 EU member states it was only Belgium who rejected such a deal at the cost of politically persecuted citizens and declared that it will fulfill its obligations under the 1951 Geneva Convention and the 1967 New York Protocol and will carry out an individual examination of any asylum request of a citizen of another EU member state! With this official declaration (no.56) Belgium indirectly confirmed that protocol no.24 is a violation of International law!

As a consequence the Council of the EU should discard Protocol (no 24) immediately. The European Commission, the European Ombudsman and the European Parliament are called upon to support this request. Of course, an application for asylum of an EU citizen will (hopefully) always be an extraordinary, special case. Therefore it may need a special procedure and also special consequences. Instead of forcing member states to ignore their international obligations asylum applications of EU citizens (and permanent residents) should be dealt with at EU level, e.g. by the Commissioner for Justice and Home Affairs or even better by an independent body or committee and when they are well founded asylum should be granted for the whole EU territory. But in such cases the Commission should automatically open an investigation of the situation in the country the applicant is coming from in order to avoid similar cases for the future. Such a procedure would be appropriate for the “area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights”.

 


[1] http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M/TXT&from=EN

[2] idem

[3] http://www.unhcr.org/3b66c2aa10.html

[4] http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[5]Convention for the Protection of Human Rights and Fundamental Freedoms, http://www.echr.coe.int/Documents/Convention_ENG.pdf

[6]William Shawcross, member of the board of the International Crisis Group, Shawcross, A Disgraceful EU Asylum Proposal, the New York Times, 14.06.1997, http://www.nytimes.com/1997/06/14/opinion/14iht-edshaw.t.html ,

[7] 11,7 mio refugees at the end of 2013 according to the 2013 report of UN High Commissioner for Refugees http://www.unhcr.org/539809d40.html

[8]The then Spanish Prime Minister Jose Maria Aznar wanted to hinder with all means that supporters of the terrorist group ETA could be granted asylum in another EU country. But the application of Protocol no.24 is in no way limited to suspects of terrorism!

[9]Landgren, Deflecting international protection by treaty: bilateral and multilateral accords on extradition, readmission and the inadmissibility of asylum requests, UNHCR Working Paper Nr. 10, 1999, S. 12)

[10]http://website-pace.net/documents/19838/1085720/20150108-RuleOfLawThreats-EN.pdf/8f7cf82e-80d5-4b51-abdb-4df05301d73e

International Law

Psychology of Political Power : Does Power Corrupt or is Magnetic to the Most Corruptible?

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Last week I attended a conference on ‘Political Power, Morality and Corruption’. A Socratic dialogue with fellow scholars led me back to one question that epistemologically haunts political theory and philosophy to date – Does power corrupt or is magnetic to the most corruptible? The cornerstone that this question posits on is antithetical to the idea of power duality as malefic or benefic. Instead, this problem statement is trying to explore and exact the fundamentals of political power. While the former part of the question is striving to deconstruct the soma of power itself, the latter construct of the question is focussing on the agency of an individual with political power.

Now, if you have read Frank Herbert’s Chapterhouse Dune, Missionaria Protectiva US science fiction novelist (1920 – 1986), he writes, “All governments suffer a recurring problem: Power attracts pathological personalities. It is not that power corrupts but that it is magnetic to the corruptible. Such people have a tendency to become drunk on violence, a condition to which they are quickly addicted”. Rather than saying absolute power corrupts absolutely, Herbert reveals a common metaphysical denominator: corruptibility,  that fundamentally connects all those with political power. However, his sematic interpretation gives birth to more questions than answers. Suppose we take Herbert’s argument in consideration and assume that the most corruptible are indeed attracted to power. In that case, the global political infrastructure as we know today, is then built on the building block of corruption by its very virtue. For example, the 4th edition of the Global Corruption Index (GCI 2021) covered 196 countries and territories, and provided a comprehensive overview of the state of corruption around the world based on 43 variables. This extensive data revealed that only 52 countries have a low corruption index, with Finland and Norway leading the way. On the other hand, the rest 144 countries are suffering from profane corruption. Using Herbert’s interpretation of power and corruption, should we conclude that political corruption which is about privatization of average citizen and the use of public sphere to promote private interests, is the foundational political infrastructure of these 144 countries? And if this assertion is true, does it mean that every government representative of these 144 countries are fundamentally corrupt? Herbert’s simplistic interpretation of the problem statement creates a moral conundrum of either this or that, rather than exploring the connection between the two variables – power and corruption.

Power does not corrupt. It amplifies and reveals a leader’s predispositioned traits.

For decades, social psychologists were convinced that power corrupts. One of the key demonstrations of this assertion was the classic Stanford Prison Simulation Experiment (Zimbardo, 1971), where volunteers were randomly assigned to play the role of prisoners or prison guards. As the day passed by, it was observed that the students who were given the role of prison guards became sadistic and exercised their power to subjugate prisoners by taking away their clothes and forcing them to sleep on concrete floors. This subduing was absolute barbaric and callous in nature. The results were shocking. However, the Stanford Prison Experiment failed to explore one crucial variable –  the behavioural and cognitive pattern of students who willingly participated and were recruited to be a part of ‘study of prison life’. So, Thomas Carnahan and Sam McFarland (2007) conducted an experiment on Revisiting the Stanford Prison Experiment: Could Participant Self-Selection Have Led to the Cruelty?. They wanted to studywhat kind of people participate and are drawn to the likes of Stanford Prison Experiment. The research revealed that “ volunteers for the prison study scored significantly higher on measures of the abuse-related dispositions of aggressiveness, authoritarianism, Machiavellianism, narcissism, and social dominance and lower on empathy and altruism, two qualities inversely related to aggressive abuse”.

What Carnahan and McFarland’s experiment revealed was that power doesn’t corrupt, but it is a phenomenon that is monopolized by the agency of an individual. Power amplifies and exposes cognitive and behavioral predispositions that already exists within you. It merely reveals your innate tendencies, but it does not corrupt. Let’s take another example of a democratic statesman who wants to introduce a new healthcare bill for his people, is unexpectedly confronted with an ethical conundrum – he can either strengthen his political power and wealth by collaborating with pharmaceutical giants and increase the prices of the medicines in concern (demand-supply chain) , or he can metamorphosize his proposed bill into reality and benefit his subjects. What will he do? Since he already has procured political power and is deliberating on actualizing his healthcare bill to empower people, power here has not corrupted him. In fact, the argument that power corrupts collapses because if power indeed corrupts, this democratic statesman would not have proposed a healthcare bill for the welfare of his people to begin with. However, if he decides to enact the bill in favor of pharmaceutical moguls to increase his wealth and political status quo, it would be due to his predispositioned behavioral and cognitive schema for corruptibility. How he responds to this ethical conundrum will mirror his political psyche. It has nothing to do with power being essentially corruptible. Power only amplifies and exposes a leader’s predispositioned traits. 

Friedrich Hayek makes a similar point in his chapter ‘Why the worst get on top’ in The Road to Serfdom (1943), where he highlights that individuals who rise to the top in the government are those who want to wield power and those who are most ruthless in using power. He writes, “Neither the government administration of a concentration camp nor the Ministry of Propaganda is suitable places for the exercise of humanitarian feelings. Yet, positions like these create a totalitarian state. So, when a distinguished American economist concludes that the probability of people in power disliking the possession and exercise of power is low, is similar to falsely assuming that the probability of an extremely tender-hearted person to desire a position of an whipping-master in a slave plantation is high.”

Recently, psychologists have re-investigated this phenomenon and theorised that rather than being a corrupting influence, power amplifies leaders’ innate tendencies. For example, extensive research on ‘Leader corruption depends on power and testosterone’ by Bendahan, Zehnder, Pralong and Antonaki used incentivized experimental games to manipulate leaders in power. Here, leaders had complete freedom to decide monthly pay-outs for themselves and their followers. Now, leaders could have made a prosocial decision to benefit the public good. However, they chose to abuse their power by invoking antisocial decisions, which reduced the total pay-outs of their followers but boosted the leaders’ earnings with a high margin. The researchers write, “In Study 1 (N = 478), we found that both amount of followers and discretionary choices independently predicted leader corruption. Study 2 (N = 240) examined how power and individual differences (e.g., personality, hormones) affected leader corruption over time; power interacted with endogenous testosterone in predicting corruption, which was highest when the leader power and baseline testosterone were both high. Honesty predicted initial level of leader’s antisocial decisions; however, honesty did not shield leaders from the corruptive effect of power.” 

Concluding with Caligula – The Mad Roman Emperor!

After years of witnessing the most barbaric purges, treason laws, exiles, execution, and corruption of all time during Tiberius’s rule, Caligula (37 – 41 AD) was seen as a breath of fresh air when he took the throne. After going through despondent years of constant fear, Caligula’s initiation was perceived as a hope for a flourishing Roman republic. At first, Caligula lived up to the expectations of the roman people. He brought back many people exiled by Tiberius and ceremoniously burned the records of the infamous Treason Trails held by Sejanus under the order of Tiberius. This act was celebrated and made Caligula popular and well-liked among the Senate. He then took a step further and eliminated unpopular hefty taxes, initiated constructions of harbors that created massive employment opportunities for Roman citizens, and staged lavish events like chariot races, gladiator shows, and theatre plays to entertain his people. He was indeed a breath of fresh air after Tiberius. 

But, after seven months of his rule, things changed for the worst. Caligula started to use and abuse his political powers so dauntlessly that it pushed Rome into a dark age of political and economic instability. He went on a rampage of committing murder, adultery, and acts of debauchery. His eccentricities became more murderous, including restating the very Treason Trials that he had ended. Dressed in silk robes and covered in jewels, Caligula pretended he was a god. He made it mandatory for his senators to grovel and kiss his feet and seduced their wives at lavish dinner parties. He wanted his statue to be erected in the temple at Jerusalem, which at the point, would have been highly controversial in a region that was already prone to revolt against the Romans. Luckily, Herod Agrippa, who ruled Palestine then, convinced him not to do so. Additionally, since Caligula was spending vast amount of money on his lavish lifestyle, he emptied Rome’s treasury. To reverse this damage, he started blackmailing roman leaders and senates, and confiscated their properties and wealth. 

There is no denying that there was a method to Caligula’s political madness but power didn’t corrupt him. If it did, the first initial seven months of ruling Rome after Tiberius, Roman republic would not have experienced economic, political and culture growth. However, power certainly did amplify and expose his innate characteristics of corruptibility and debauchery. Caligula’s madness of abusing political power and tyrannical reign grew out of control. An assassination plot for structured against him and he was murdered after being stabbed over 30 times by a cabal of Praetorian guards in 41 A.D. This reminds me of what Robert Caro mentioned in his book The Passage of PowerThe Years of Lyndon Johnson(2012), “Power always reveals. When a man is climbing, trying to persuade others to give him power, concealment is necessary. But, as soon as the man obtains more power, camouflage becomes less necessary.” To conclude, it is not that the power corrupts or is magnetic to the most corruptible. The truth is – power only reveals who you truly are.

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International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

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In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

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International Law

The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

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The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

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