Bulletin of the Atomic Scientists

ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rbul20

Legal and political myths of the Treaty on the

Prohibition of Nuclear Weapons

Edward M. Ifft & David A. Koplow

To cite this article: Edward M. Ifft & David A. Koplow (2021) Legal and political myths of the Treaty
on the Prohibition of Nuclear Weapons, Bulletin of the Atomic Scientists, 77:3, 134-139, DOI:
10.1080/00963402.2021.1912198

To link to this article: https://doi.org/10.1080/00963402.2021.1912198

Published online: 11 May 2021.

Submit your article to this journal

Article views: 204

View related articles

View Crossmark data

Citing articles: 1 View citing articles

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=rbul20
BULLETIN OF THE ATOMIC SCIENTISTS
2021, VOL. 77, NO. 3, 134–139
https://doi.org/10.1080/00963402.2021.1912198

OTHER FEATURES

Legal and political myths of the Treaty on the Prohibition of Nuclear Weapons
Edward M. Ifft and David A. Koplow

ABSTRACT KEYWORDS
The Treaty on the Prohibition of Nuclear Weapons is an important diplomatic, political, and legal Nuclear nonproliferation;
landmark in the longstanding effort to abolish nuclear weapons. It has already been joined by 54 Treaty on the Prohibition of
countries, but has been rejected by all the states that currently possess nuclear weapons. Accurate Nuclear Weapons; Nuclear
Non-Proliferation Treaty;
and even-handed analysis of the treaty’s potential contributions, its relationship to other legally-
Vienna Convention on the
binding instruments, and its likely future have been obscured by the perpetuation of a series of Law of Treaties
legal and political myths, which this article seeks to expose and clarify.

The Treaty on the Prohibition of Nuclear Weapons
(TPNW) is, by any measure, a major milestone in interna­
tional law and nuclear security policy. It is the first treaty in
history that categorically and permanently prohibits for all
its parties the testing, possession, transfer, use, or threat of
use of nuclear weapons, and that aims for universal parti­
cipation. The treaty entered into force on January 22, 2021
and has already attracted 54 parties and an additional 32
signatories, although all the countries that possess nuclear
weapons, along with their closest allies, have stayed away.
In this article, we take no position on the treaty’s sub­
stantive merits. The treaty’s proponents herald the agree­
ment as a major accomplishment in the longstanding
effort to eliminate all nuclear weapons and to keep the
world free from this historic scourge. These humanitarian
achievements would mark the eagerly-awaited fulfillment
of the nuclear disarmament commitment contained in
Article VI of the 1968 Nuclear Non-Proliferation Treaty
(NPT). The TPNW could become a significant conceptual
watershed, helping to stigmatize the continued possession
of nuclear weapons and reenergizing the global effort to
abolish them in a timely fashion.
On the other hand, the treaty’s critics observe that it has
been joined – and for the foreseeable future likely will be
joined – only by states that do not possess and have already
legally foresworn nuclear weapons. The treaty will not, by
itself, accomplish the destruction of even a single warhead.
Our attempt here is to place the Treaty on the
Prohibition of Nuclear Weapons in its appropriate poli­
tical and legal context, to identify a few of its signal
accomplishments and shortcomings, and to address
a series of sometimes-deliberate myths or mischaracter­
izations that have impeded careful analysis of the
treaty’s place in the annals of disarmament efforts. We
hope to sort out confusing or conflicting claims about
the treaty without addressing questions regarding
humanitarian issues, deterrence, and verification that
have been discussed in detail elsewhere.
A network of treaties
The Treaty on the Prohibition of Nuclear Weapons is
a remarkable, stand-alone instrument in a field already
populated by a series of interrelated international agree­
ments. The treaty’s parties are not required to join the
Non-Proliferation Treaty, or to adhere to the 1996
Comprehensive Nuclear Test Ban Treaty, or to accept
the Additional Protocol applicable to safeguards agree­
ments with the International Atomic Energy Agency – all
key multilateral bulwarks against the spread of nuclear
weapons. In addition, many of the relevant states are also
already parties to one of the regional nuclear-weapon-free
-zone treaties that establish binding legal obligations that
partially overlap those of the TPNW.
The original concept behind the Treaty on the
Prohibition of Nuclear Weapons was that the negotiators
would produce an integrated package of two legally-
binding documents. The first would be a relatively brief
instrument in which the world would declare that nuclear
weapons are (or should be) illegal and that all existing
nuclear weapons must be promptly eliminated. This
would be followed by a second, much more detailed docu­
ment, modeled after the 1993 Chemical Weapons
Convention, that would establish procedures for the elim­
ination of all such weapons, create an effective verification
regime, define all relevant terms, and more. This approach
would resemble many prior successful major arms control
treaties.
What actually happened, however, was a short and
efficient negotiating conference at the United Nations

CONTACT David A. Koplow koplow@law.georgetown.edu

© 2021 Bulletin of the Atomic Scientists

headquarters in New York in 2017 that melded these two
documents into a single treaty. The negotiators established
a firm, comprehensive, legal prohibition on nuclear weap­
ons but deferred crucial technical details for later work by
whoever eventually turned out to be the treaty’s parties.
They appeared to assume that all or many of the states with
nuclear weapons would join the deliberations. However,
this was not to be. The result has been that all of the states
with the most nuclear expertise – in particular, the United
States and Russia with their decades of Strategic Arms
Limitation Talks/Intermediate-range Nuclear Forces
Treaty/Strategic Arms Reduction Treaty/New Strategic
Arms Reduction Treaty experience – were unavailable to
help design the crucial details of implementation. Those
states, in fact, opposed the entire enterprise and have
denounced the TPNW in its current form.
Aspirational or legally binding
Coming to grips with this situation, some advocates of the
Treaty on the Prohibition of Nuclear Weapons have recog­
nized that the document cannot accomplish its object and
purpose without a dramatic change of heart by the five
permanent members of the Security Council and the other
nuclear weapons possessors. Accordingly, some propo­
nents now say that the treaty is, in part, an “aspirational”
document whose primary, immediate purpose is to shift
the terms of the international debate about nuclear weap­
ons from a dialogue about deterrence toward greater sen­
sitivity to the humanitarian consequences of nuclear
activities. As part of this process, the treaty aspires to
pressure the nuclear weapons states to see the light. To
borrow a phrase, it is to be taken seriously, but not literally.
Arms control treaties often emphasize lofty aspira­
tions, such as by placing reference to longer-term goals
in a preamble. To be sure, the Treaty on the Prohibition
of Nuclear Weapons does have an unusually expansive
preamble engaging in that sort of rhetoric. However,
a document with so many legally binding provisions is
not merely aspirational; it is legally actionable. The
treaty’s awkward problem is that it was primarily
drafted to apply to states with nuclear weapons, but all
of its current parties are states without such weapons.
Some have since suggested that the nuclear weapon
states should, in response, draft their own parallel treaty
that incorporates the provisions they identify as neces­
sary to a more effective engagement. The legal confusion
this process could generate is obvious.
A series of myths
Six legal and political myths surround the status and effects
of the Treaty on the Prohibition of Nuclear Weapons. Like
BULLETIN OF THE ATOMIC SCIENTISTS 135
all good myths, these contain certain elements of truth.
However, their overall effect is misleading, sometimes
deliberately so, in pursuit of political advantage. The first
three myths have been propagated by the treaty’s suppor­
ters while the last three are attributable to its opponents.
Myth 1: The Treaty on the Prohibition of Nuclear
Weapons constitutes international law. This myth exempli­
fies the category of “true but inaccurate.” That is, as an
international agreement concluded between states in writ­
ten form and governed by international law, the document
certainly fits the definition of a “treaty” under the Vienna
Convention on the Law of Treaties, Article 2.1(a). In that
sense, it constitutes binding international law. But that
characterization is woefully incomplete without the impor­
tant caveat that, like any other treaty, the TPNW is law
only for the states that voluntarily agreed to join. It has no
authority over the United States, Russia, China, or the
other countries that have elected to stay away.
Article 34 of the Vienna Convention on the Law of
Treaties makes explicit the general rule that “A treaty
does not create either obligations or rights for a third
State without its consent.” This means that while 54
states have joined the TPNW and adopted its full slate
of legal obligations, the vast majority of the world’s
countries – representing an even vaster majority of the
world’s population – are legally immune from it.
For comparison, it could be stated that any bilateral
treaty – such as the 2010 New START Treaty between
the United States and Russia – constitutes international
law. For those two participants, that characterization is
completely true. But adding “for those states” to this
sentence would describe the legal situation more accu­
rately. In like manner, multilateral treaties such as the
NPT are binding international law, but their restrictions
are legally irrelevant to those states that, in the exercise
of their national sovereignty, have elected not to adhere.
Implying otherwise is intellectually dishonest.
Myth 2: The contents of the Treaty on the Prohibition
of Nuclear Weapons constitute (or will soon constitute)
customary international law. Sometimes the contents of
a treaty do pass into customary international law,
thereby assuming a binding quality even for states that
have opted out of the treaty. In particular, a multilateral
law-making instrument that has been designed to attract
widespread or even universal adherence and that does in
fact win nearly that degree of support, can thereby
generate or reflect new norms of customary interna­
tional law.
In the realm of arms control, something of that sort
probably happened with the 1967 Outer Space Treaty
and the Chemical Weapons Convention. Much, if not
all, of the substantive content of their respective ban
provisions would now be regarded as applicable to all
136 E. M. IFFT AND D. A. KOPLOW
states, even beyond the significant numbers of states
that have ratified or acceded to them. (It should be
noted that the unwritten nature of customary interna­
tional law inherently generates a degree of ambiguity
about its applicability – there is often no authoritative
mechanism for determining whether and when
a particular rule becomes binding. Even with respect
to these two treaties, it would be hard to prove that
they reflect customary international law, though most
informed observers would claim as much.)
The standard criteria defining customary interna­
tional law focus on establishing and maintaining
a longstanding, widespread pattern of concordant state
behavior, undertaken out of a sense of legal obligation
and accepted by the community of states. To be sure,
there are plenty of indefinite terms in that definition,
and there is often scope for debate, for example, about
whether a pattern has been sufficiently “widespread” or
“longstanding” to meet the test.
For the Treaty on the Prohibition of Nuclear
Weapons, however, most would agree that the behavior
of 54 states, together with a duration that started as
recently as January 22, 2021, would be insufficient.
This conclusion is especially inescapable since many of
the nonparticipants have not been merely passively dis­
engaged; they have been active in opposition, resisting
the entire diplomatic initiative and rigidly declaring
their objection to the treaty and its negotiation.
It is also generally accepted that in the articulation of
a pattern of state behavior regarding customary inter­
national law, there is no principle of “one state, one
vote.” That is, states that are especially active in the
particular field, or that are specially affected by the
putative rule, carry more weight. With nuclear weapons,
all states are potentially affected in vital ways. However,
the attitudes and actions of the five permanent members
of the UN Security Council and the other countries that
possess nuclear weapons cannot be ignored. All of those
states have overtly opposed the treaty.
Finally, it should also be noted that any state may
exempt itself from a rule of customary international law
by positioning itself as a “persistent objector” (or “consis­
tent dissenter”) from the norm. This opposition must be
public and must be sustained from the outset. In the case
of the Treaty on the Prohibition of Nuclear Weapons, the
consistent, vigorous opposition from the United States
and several others would surely qualify. Thus, even if
the treaty were somehow deemed to have risen to the
status of customary international law, many important
states would have effectively exempted themselves from it.
Myth 3: The Treaty on the Prohibition of Nuclear
Weapons constitutes an international norm that states
should respect. Here, treaty advocates who realistically
concede the first two points – that the TPNW has no
legally binding force upon non-parties and that it does
not constitute, and probably never will constitute, cus­
tomary international law – retreat to a less strident form
of argumentation. In this instance, they use a mélange of
carefully chosen terms to suggest an importance that
runs well beyond their real meaning.
The term “norm,” for example, is marvelously vague.
Sometimes, it is used as a synonym for “rule” or “law.”
Other times, it conveys a softer meaning, such as “prin­
ciple” or “tradition.” Often it refers to a practice that has
been hallowed by widespread respect, but whose viola­
tion results in social or political, rather than legal,
stigma. In that latter sense, the Treaty on the
Prohibition of Nuclear Weapons could be a candidate
for a “norm” because the treaty entrepreneurs earnestly
want additional states to behave in conformity with it
and activists will attempt to persuade, cajole, entice, or
pressure wavering states to join. But there is no inter­
national legal content to enforce that behavior.
Likewise, this myth expresses what states “should” do
regarding the treaty, rather than relying upon the legally
operative verb “shall.” And those who promote this
myth call upon states to “respect” the treaty, rather
than the tougher mandate to “obey” or “carry out” its
terms. They sometimes denigrate the states that oppose
the treaty as “outlaws” for acting in defiance of interna­
tional standards of behavior.
All of this extravagant rhetoric is designed, like many
other myths, to convey a seemingly stronger message than
the underlying truth supports. States that have not joined
the treaty have no obligation to uphold it. Advocates can
call upon them to join or, short of joining, exhort them to
respect and support it more abstractly. While these actions
are a completely fair sort of political gamesmanship, there
is no legal authority behind that ploy, and it is misleading
to imply the existence of some quasi-lawful mandate. The
Treaty on the Prohibition of Nuclear Weapons may help
shift global consciousness by stigmatizing nuclear weapons
with the kind of fervor previously attached to anti-
personnel land mines or blinding lasers. The historical
trend line may even point in that direction. However,
that transformation has not yet occurred.
Myth 4: The Treaty on the Prohibition of Nuclear
Weapons will undermine the NPT. Treaty opponents are
just as prone to hyperbolic rhetoric as are the supporters.
Here, as above, there is valid cause for legal attention.
Article 30 of the Vienna Convention on the Law of
Treaties addresses successive treaties relating to the same
subject matter. In a nutshell, if states A, B, and C join treaty
One, and then later, A and B (but not C) also join treaty

Two addressing the same topic, the legal relationships
among them can become complex. Between A and B,
treaty Two will prevail. Between A and C, or between
B and C, however, C still retains the right to insist upon
the original agreement; C’s rights and obligations pursuant
to treaty One are not affected by whatever new legal
relationships may arise between A and B.
But this legal structure shows its teeth only when the
two treaties are substantively inconsistent, when it would
be difficult or impossible for the affected states to imple­
ment simultaneously all the overlapping provisions in
good faith. In comparing the TPNW and the NPT, no
such incompatibility is apparent. It would certainly be
possible for a state to comply fully with both sets of
obligations – in fact, the overall goals and the nitty-gritty
obligations of the two instruments are quite harmonious.
A state that joined both treaties would be required to
continue to carry out its NPT obligations in full and, in
addition, to undertake the further measures in pursuit of
the Treaty on the Prohibition of Nuclear Weapons; it could
readily comply with both sets of terms.
Still, the Treaty on the Prohibition of Nuclear Weapons
imposes obligations on its parties that are significantly
stricter than those of the NPT. For example, the newer
instrument prohibits the “stationing, installation, or
deployment” of nuclear weapons on a party’s territory –
activities that the NPT permits, even for countries that are
not themselves allowed to possess nuclear weapons. But
the NPT certainly does not require a country to host
another state’s nuclear weapons. So, a state that was party
to both treaties could readily comply with both, simply by
not allowing the stationing, installation, or deployment of
nuclear weapons.
The Treaty on the Prohibition of Nuclear Weapons
acknowledges this potential overlap of legal obligations.
Article 18 provides that “(t)he implementation of this
Treaty shall not prejudice obligations undertaken by
States Parties with regard to existing international
agreements, to which they are party, where those obli­
gations are consistent with the Treaty.”
Indeed, in a larger political sense, the Treaty on the
Prohibition of Nuclear Weapons does not undermine
the NPT, but actively reinforces it. In particular, it
adds pressure on nuclear-weapons states to comply
more fully with their obligations under Article VI to
negotiate in good faith on effective measures related
to nuclear disarmament. That increased torque is one
of the reasons why the nuclear-weapon-possessing
states are so resistant to the TPNW. They do not
simply dismiss it as legally irrelevant to them; they
vigorously attack it because they accurately perceive it
as a mechanism for rallying global activism in support
BULLETIN OF THE ATOMIC SCIENTISTS 137
of honest fidelity to the NPT. The nuclear weapons
possessors are right to be apprehensive about growing
support for the Treaty on the Prohibition of Nuclear
Weapons – it challenges their traditional control over
the disarmament dialogue and makes more visible
their failure to date to redeem the Article VI
obligations.
The concern that overly zealous advocacy for the
Treaty on the Prohibition of Nuclear Weapons could
politically weaken support for the NPT may be valid if
proponents suggest that the newer treaty could replace
the older one, or assert that the NPT has irretrievably
failed, and should be superseded. But the nonprolifera­
tion and disarmament goals of both instruments are
compatible and they should be viewed as harmonious.
In contrast, the Treaty on the Prohibition of Nuclear
Weapons may be inconsistent with some states’ obliga­
tions under other treaties. Pursuant to the NATO treaty,
for example, several European parties have agreed to
host and share control over US nuclear weapons –
activities the TPNW would prohibit. This incompatibil­
ity no doubt helps explain why the United States and
countries that nestle beneath its nuclear deterrence
“umbrella” are so antagonistic to the TPNW. Similarly,
some of the nuclear sharing arrangements through the
International Atomic Energy Agency may be called into
question – but so far, no such problems have emerged.
Myth 5: The countries possessing nuclear weapons and
their closest allies will never join the Treaty on the
Prohibition of Nuclear Weapons. At the moment, this
assertion may seem like a reasonably safe bet, but the
concept of “never” connotes a very long time indeed.
Who knows what future domestic political gyrations may
occur in European, Asian, or other capitals?
To date, the “umbrella” countries, including the
NATO allies, have been steadfast in giving only a cold
shoulder to the Treaty on the Prohibition of Nuclear
Weapons. However, the domestic political constituen­
cies in several of them may be much more receptive to
immediate steps toward nuclear abolition, and the
“nuclear allergy” in Japan and elsewhere is pro­
found, too.
The Netherlands broke the NATO solidarity in 2017
and participated in negotiating the Treaty on the
Prohibition of Nuclear Weapons, though ultimately
voting against adoption of the treaty text. In 2018, the
Dutch parliament called upon the government to reex­
amine the treaty and attempt to increase support for it
among NATO members. Belgium’s parliament also
adopted a similar measure. At the same time, public
opinion in both the Netherlands and Belgium runs over­
whelmingly in favor of joining the treaty.
138 E. M. IFFT AND D. A. KOPLOW
In politics, nothing is as permanent as change, and
NATO’s democracies are ultimately susceptible to the
will of the people. Again, perhaps that long-term vul­
nerability helps explain the rigidity with which the
treaty’s opponents now proclaim that their states will
“never” adhere, as if wishing to ensure a political future
they cannot, in truth, guarantee.
Myth 6: The Treaty on the Prohibition of Nuclear
Weapons will not accomplish anything. TPNW oppo­
nents have attempted to dismiss the treaty as a dead
letter, asserting that their resolute resistance will prevent
it from having any appreciable effect on the longstand­
ing international dialog about nuclear weapons and
international security policy.
However, even if the nuclear weapons-possessing states
and their closest allies continue to abstain, the Treaty on
the Prohibition of Nuclear Weapons can nonetheless exert
a significant, prolonged effect on global affairs, and indeed
it already has done so. The 1997 Ottawa Convention on
anti-personnel land mines provides a vivid illustration of
a multilateral agreement that has been consistently rejected
by the United States and the other leading possessors of the
weaponry, but that has irrevocably altered global attitudes
toward, and practices with, the designated devices. Even
without universal membership, the mine ban has fostered
a new public rejection of the reviled weapons on humani­
tarian grounds, resulting in drastic reductions in the man­
ufacturing, international transfer, and use of land mines,
including by non-parties. The profound global stigmatiza­
tion has shifted the debates about the acceptability of these
weapons, strongly affecting public policy even in the hold­
out states.
There is, of course, no guarantee that the Treaty on the
Prohibition of Nuclear Weapons can be similarly success­
ful in inspiring a parallel public rejection of continued
reliance upon nuclear weapons, but this experience pro­
vides a vivid reminder that we cannot measure the true
impact of a new treaty solely by tabulating the number of
its early ratifiers. The social and political consequences of
the TPNW may turn out to be much more profound, in
shifting the terms of the policy discussions toward huma­
nitarian concerns and in instigating a popular groundswell
toward abolition. Movement in that direction is already
apparent, and the treaty could catalyze an even deeper,
more lasting public commitment to that vital goal.
The Treaty on the Prohibition of Nuclear
Weapons and the NPT
The relationship between the Treaty on the Prohibition of
Nuclear Weapons and the NPT is of crucial importance,
especially in view of the upcoming discussions at the 50th
anniversary NPT Review Conference, which was delayed
twice by the pandemic and is now scheduled to convene
in New York in August. The TPNW seems certain to be
a major, controversial topic; it is important that the dis­
cussions of it be substantive and respectful. This exchange
will be much more productive if all sides could agree in
advance on the legal implications of the treaty and on the
vocabulary that should be used to describe the current
situation.
Unfortunately, some academics have publicly urged
countries to withdraw from the NPT and join the
Treaty on the Prohibition of Nuclear Weapons instead.
We regard that posture as the height of irresponsible
folly – the NPT remains a vital cornerstone of interna­
tional security, and should not be jeopardized.
A somewhat more moderate, but still specious, conten­
tion is that the TPNW will replace the NPT or render it
redundant once enough countries join. This posture
overlooks the broader writ of the NPT, including its
contributions to nuclear safety and the sharing of the
peaceful benefits of nuclear energy, all which have noth­
ing to do with weapons capabilities.
No country needs to choose between the NPT and
the Treaty on the Prohibition of Nuclear Weapons, as it
is certainly feasible to adhere to both simultaneously. In
our view, the states that possess nuclear weapons should
not drag their feet in the pursuit of the abolition of
nuclear weapons, and the states that have joined the
TPNW should not abandon or denigrate the historical
role of the NPT.
There are also other legal and political issues. One
concerns the yet-to-be determined elimination and ver­
ification requirements. As the Treaty on the Prohibition
of Nuclear Weapons is formulated, a country may not
know what procedures it must carry out or what intru­
sive verification measures it must submit to until after
agreeing to accept them. A “competent international
authority” will determine these. It is unclear whether
a country with nuclear weapons that joins the treaty will
have a veto or even a vote in this body’s proceedings.
Another possible legal problem arises from the fact that
a state with nuclear weapons is encouraged to eliminate
them unilaterally, with verification of these actions by
an international body to be attempted only afterward.
Something of this sort occurred with respect to weapons
of mass destruction in Iraq, which degenerated into an
unprovable morass resulting in catastrophe.
Presumably, these issues will be addressed at the first
meeting of the treaty’s parties that must convene within
a year of its entry into force.

A look to the future
It seems clear that, when the world finally is able to agree to
eliminate nuclear weapons, it will not do so directly under the
auspices of the Treaty on the Prohibition of Nuclear Weapons.
This abolition will take place as a result of an entirely new treaty
or set of treaties negotiated by all states with nuclear weapons
plus the overwhelming majority of other states. This would
probably be accomplished via a careful step-by-step process
focused on a steady reduction in numbers and accompanied
by resolute tightening of verification and enforcement require­
ments. Those who negotiated and supported the TPNW may
be appreciated as having played an important, catalytic role in
this long process.
The legal and political debate about the Treaty on the
Prohibition of Nuclear Weapons should be mutually
respectful and accurate, while recognizing the divergent
merits of the treaty’s pro and con arguments.
Disingenuous overstatements and mischaracterizations of
the treaty on either side do not help.
BULLETIN OF THE ATOMIC SCIENTISTS 139
Disclosure statement
No potential conflict of interest was reported by the authors.
Funding
This research received no specific grant from any funding
agency in the public, commercial, or not-for-profit sectors.
Notes on contributors
Edward M. Ifft is a retired member of the Senior Executive
Service. His career was primarily as an official in the State
Department, where he worked principally on nuclear arms
control. He is now a Distinguished Visiting Fellow at the
Hoover Institution, Stanford University.
David A. Koplow is a professor at the Georgetown University
Law Center. He previously served as Deputy General
Counsel for International Affairs at the Department of
Defense and as attorney advisor and special assistant to the
director of the U.S. Arms Control and Disarmament Agency.