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Has the EU turned its back to ECHR?

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Who is the supreme human rights judge in Europe?

Up to 18 December 2014, it was taught or hoped to be the European Court of Human Rights in Strasbourg (ECtHR). Now, having the European Court of Justice (ECJ) rejected the draft accession agreement of the European Union to European Convention of Human Rights (ECHR), the issue remains unsolved. The final link in the human rights protection in Europe is still missing. The strength of the negative opinion and the crucial points of non-compliance of the accession agreement with the EU law, as presented by the ECJ, leave a lacuna in the European system of protection of human rights.
The system which lives for more then 6 decades in Europe, and which is often considered to be one of the most effective regional mechanisms of human rights protection, despite of several necessary improvements to deal with its backlog.

The system which may make the respondent state to redress the human rights violations,  provide the affected victims with just satisfaction, or even undertake some general measures such as to amend or adopt laws, change inappropriate practices, etc.
The only loophole in  the protection of human rights in Europe, however, remains a loophole. The gap was not closed.
The European Union has indeed recognized the European Convention as an instrument by which general principles it shall be led in accordance with constitutional traditions of Member States (Article 6 para 3 of TEU/TFEU). But there comes a question of the extent of influence of the Convention. To respect human rights as a principle, or to be bound  by the European Convention and ready to take consequences of potential human rights violations? 

The EU was supposed to submit itself to the Court which is not an EU court but the court belonging to a regional international organization consisting of 47 states, the Council of Europe, including at the same time all member states of the EU.
EU provided in the Lisbon treaty its will to accede to ECHR. Although this would come as a precedent, as members to the Convention are only sovereign states, it was eagerly awaited as another signal that EU does carry state elements. The accession would have covered the only loophole in Europe which is not covered directly by the ECHR, and which are the institutions of the EU. Every citizen of the EU could complain to the ECtHR, not only against its national state, but also against a EU body. However, with the ECJ decision as such, the EU citizens seem to be deprived of this control of EU bodies. They can complain to the European Ombudsman, however the ombudsman nature of controlling affairs cannot be compared to judicial control of human rights violations, and is more relied upon the power of authority of ombudsman without an executive power as to its recommendations.

It appears that the ECJ opinion brings out not only the question of the human rights protection instrument applicable in the EU, but one more important question as well. What is the nature of the EU? Is it a sui generis state, a quasistate or a regional international or supranational organization?

Elements that a state should have in classical theories encompass the citizens, government and the territory.
Citizens of the EU are recognized by their EU affiliation and hold the EU citizenship. However, the citizenship is not exercised by the EU itself. It has only accessory nature to national citizenship. The member states are the ones that decide upon the terms of acquiring and loosing one’s citizenship. Naturalization rules differ from state to state, in duration of residence, duration of marriage/partnership, and even in (non)necessity of actual residence in the state granting citizenship. Therefore, there are no unified rules at the EU level governing the acquiring or loosing a EU citizenship.

EU territory is to a large extent unified  by the single market, freedom  of movement of persons, goods, capital and services, which might be scrutinized only for public good purposes, i.e. protection of public morals, health, prevention of crime etc.
Government in abstract sense, is a bit more complex. Once upon a time, it entailed only state governing power directed to inward, and was considered to be absolute, sovereign, not touchable by any more supreme power. With the atrocities of two world wars the government split to the inner, controllable by the state and outer, states willingly giving to a third objective authority, which led to further development of principles of monism and dualism in international law. Younger democracies opt for dualism, asking for an international recognition of their newly acquired values, while older more traditional democracies stick to monism preserving their inner values and being less susceptible to outer voices. Thus came the Council of Europe. For the cause of safeguarding of values of human rights, democracy and the rule of law, 47 states are now bound to give the part of their sovereign government to CoE bodies, guaranteeing that they will live by these principles. Their will was expressed by their ratification of the ECHR, which is still, despite of occasionally slow procedure by the Convention bodies, considered to be most effective human rights instrument. Differing from other instruments protecting human rights, it provided for direct jurisdiction of the European Court of Human Rights, acting upon a complaint against a respondent state. So it brought not only material but procedural guarantees as well. On the other hand the EU Charter, provides for material provisions mainly taken from the ECHR.
EU seems not ready to submit itself to an outer, third body which could control its acts or procedures in the human rights aspect and eventually request certain actions to be done.
EU thus twice failed at the statehood exam. First, when its constitution was not upheld and now when the ECJ did not uphold its accession to ECHR.

Preparatory work for the accession
The grounds for the accession is Lisbon treaty, in force since 1 December 2009, which in Article 6 para 2 of TEU and TFEU, stipulates that EU shall accede to ECHR provided that EU competences are not affected by the accession. Having in mind that only sovereign states might be member states to the Convention, the first formal link between the CoE and the EU was made by the adoption of Protocol No. 14 to the Convention, which provided in its Article 17 that: ‘The European Union may accede to this Convention’. The said Protocol entered into force on 1 June 2010.

 A specially assigned Steering Committee for Human Rights (CDDH), on the side of Council of Europe, and European Commission, on the side of European Union, started their task to prepare the legal instrument of the accession. In mid June 2010, CDDH appointed an informal group of 14 members chosen on the basis of their expertise (seven from EU member States and seven from non-EU member states), and it held eight working meetings with the European Commission and subsequently the ad hoc group (47+1) held another five negotiation meetings with the European Commission. As a result of joint efforts by both the CoE and the EU, a package of text including the draft accession agreement was adopted on 10 June 2013.
Accordingly, the accession agreement did not come at once, nor was it imposed by the Council of Europe. It came as a result of long negotiation process that took more then three years.

That is why the opinion by the ECJ was a surprise to many scholars and practitioners. Could it be that negotiations were not thorough enough? Or that the ECJ was too strong in defending its position? It appears that the ECJ took the role not only of adjudicator but of a (de)creator of political approach towards ECHR undermining the very essence of the whole idea of accession to ECHR. It did not take the negative opinion as to formal grounds but it referred to crucial elements of the Convention system and its procedural safeguards towards the EU. It almost totally detached from the approach agreed upon 7 years earlier in Lisbon.

Essence of the opinion of the ECJ
EU Charter v. the ECHR and ECJ v. the ECtHR
At the outset of its reasoning the ECJ points out that it has only been possible for State entities to be parties to the Convention, and that the EU has created a new kind of legal order with its peculiar nature (para 155, 158 of the Opinion 2/13) which resulted from the Member states limiting their sovereign rights for the benefit of EU (157). It stresses out that the Treaties retain primacy  over the laws of the Member States, and that at the heart of that system is the Charter and the fundamental rights it protects with the ECJ giving the judicial protection of individual’s rights. Thus at the very beginning of its reasoning the ECJ wanted to put itself and the EU human rights instrument, the Charter, at the strong first position regarding the issue of human rights protection in EU.

Concern about external control
The ECJ was concerned about its future role in case the EU acceded to ECHR. It contended that the interpretation of the ECHR by the ECtHR would be binding on the EU and that the interpretation by the Court of Justice of a rights recognized by the ECHR would not be binding, vice versa, on the ECtHR.  The ECJ has thus clearly refused to be controlled by the ECtHR and to have a subordinated position in the Strasbourg system of human rights protection, which is the exact mode of functioning of Strasbourg system.

Concern about the Convention  minimal standards
The crucial point of the ECHR is that it gives only the minimum standards below which the states cannot go. It however does not prevent the states to provide more rights then prescribed by the Convention. The ECJ however fears that the states giving higher standards of human rights protection could jeopardize the Charter having primacy in the EU law. If we have in mind that the Charter mainly incorporated ECHR rights, (and added some more, for example the right to work), can we imagine how could better protection of human rights jeopardize Charter?
Principle of mutual trust-Interstate applications
Interstate applications under the Convention according to which any state may initiate proceedings against any other member state to the Convention, are aimed to preserving the peace and giving every state the right to be a watchdog over possible massive violations of human rights. During the whole life time of the Convention the ECtHR issued only 5 judgments upon interstate applications, in cases of Ireland v. the United Kingdom, Cyprus v. Turkey (2), Denmark v. Turkey and Georgia v. Russian Federation. The ECJ however stressed out that ‘checking’ by one Member state of another Member state would upset the underlying balance of the EU and undermine the autonomy of EU law. (194) Moreover, it said that if the EU states would be able to submit the application to the ECtHR it would undermine the very nature of EU law which requires that relations between the Member states be governed by the EU law to the exclusion. (212) By such a reasoning the ECJ very  avariciously preserves its legal system from any outer influence or control.

Advisory opinions by ECtHR v. preliminary rulings by ECJ
Under Protocol No. 16 to the ECHR the Member states could ask the advisory opinion by the ECtHR about the interpretation or application of the European Convention. However, the ECJ fears that the state could circumvent the procedure for preliminary ruling by ECJ by which it interprets EU law?!

Interference into division of powers?
The ECJ contends that ECtHR might be required to assess the rules of EU law governing the division of powers between the EU and its Member states or the criteria for their acts or omissions, and thus interfere into division of powers (224, 225). Could the ECJ be considered overcautious?

Subsidiarity of ECHR system
The very important feature of the ECHR protection system is that it has a subsidiary nature, i.e. it gives first the chance to national system to address the potential human rights violation and only if it fails, there comes the Convention system. That also goes in line with the exhaustion of domestic remedies requirement prior to addressing to the ECtHR. Logically, in case of EU accession to ECHR, the domestic remedy to be exhausted, in case it is effective, would involve the ECJ. However the ECJ contends that if such a possibility would be permitted then the ECtHR would interpret the case-law of the Court of Justice (239). Well it is true, but only when there is a human rights violation under the European Convention, at stake and in accordance with its well established case-law. However the ECJ remains of the opinion that if it (ECJ) were not allowed to provide the definitive interpretation of secondary law, and if ECtHR would provide for its interpretation, it would breach the exclusive jurisdiction over the definitive interpretation of EU Law of the ECJ.

Common Foreign and Security Policy (CFSP)
The ECJ finds problematic any possibility of interfering into the acts of EU under CFSP. But the European Convention does recognize the right of states (EU) to limit certain rights and freedoms (for example Articles 8-12 of the Convention) for the purposes of safeguarding public peace, security, morals, etc. It also provides for the right of depositing reservations regarding certain provisions. Absolute rights, off course, are excluded from this option, such as the right not to be tortured.
 It seems from the above considerations that the EU is an international regional organization not yet ready to submit its system to external control. EU remains traditional, not allowing for external control, fearing from loosing the consistency of its well established system. And as dr. Walter Schwimmer rightfully remarked in his recent ‘Human Rights violations inside EU’ ‘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’.
So, how shall the negative ECJ opinion affect the human rights gap that remained in relation of ECHR towards the EU? Well, the future is ours to see.

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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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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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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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