Geneva, 14 January 2020
DP JUR ARMES 20/00001 HDUR/mlov
Dear Sir, Dear Madam,
Please find enclosed the submission of the International Committee of the Red Cross (ICRC)
to the Alþingi Inquiry into Resolution 70/150, “Bann við kjarnorkuvopnum” ("Prohibition of
nuclear weapons").
Yours sincerely,
Helen Durham
Director of International Law and Policy
International Committee of the Red Cross
Utanrikismalanefnd
Austurstraeti 8 - 10
101 Reykjavik
Encl.: Factsheet Treaty on the Prohibition of Nuclear Weapons (TPNW)
ICRC responses to key TPNW challenges
ICRC
Treaty on the Prohibition of Nuclear Weapons:
Responses to key challenges
This memorandum presents the views o f the International Committee o f the Red Cross (ICRC)
on some key concerns and criticisms that have been raised about the Treaty on the Prohibition
o f Nuclear Weapons (TPNW). The ICRC will also provide briefing papers on more technical
and legal matters on www.icrc.org and through its partners in the Red Cross and Red Crescent
Movement.
Since 1945, the International Red Cross and Red Crescent Movement, of which the ICRC is a
part, has been calling for the prohibition and elimination of nuclear weapons. Our call was first
driven by the unspeakable suffering caused by the atomic bombs in Hiroshima and Nagasaki,
which the ICRC and the Japanese Red Cross witnessed first-hand while attempting to bring
relief to the dying and injured. The nuclear blasts had wiped out these cities, instantly killing
tens of thousands of people, obliterating medical facilities, and leaving behind appalling
conditions for survivors. Tens of thousands more died in the following years due to radiation
poisoning. And seven decades on, we still bear witness to the long-term effects of nuclear
weapons, as Japanese Red Cross hospitals continue to treat many thousands of victims of
cancers caused by radiation exposure.
The International Red Cross and Red Crescent Movement’s call to prohibit and eliminate
nuclear weapons has also been guided by the fact that we would be unable to provide any
meaningful humanitarian response in the event of the use of nuclear weapons. The reality is
that if a nuclear weapon were to detonate in or near a populated area, there would be an
overwhelming number of people in need of treatment, while most of the local medical facilities
would be destroyed. Assistance providers would also face serious risks associated with
exposure to ionizing radiation. The ICRC’s own studies, and those of UN agencies, have found
that in most countries and at the international level, there is little capacity and no realistic or
coordinated plan to deal with these tremendous challenges.
Our Movement has also expressed deep concern at the increasing risks of use of nuclear
weapons by intent, miscalculation or accident1. Nuclear weapon States are modernizing their
arsenals, developing new kinds of nuclear weapons, and making them easier to use. Military
incidents involving nuclear-armed States are occurring with disturbing frequency. At the same
time, we see previous restraints steadily falling away, and a deeply concerning erosion of the
international framework governing nuclear disarmament and arms control.
The horrific immediate and long-term consequences of nuclear weapons, some of which are
described above, can hardly be reconciled with the fundamental rules of international
humanitarian law that bind all States. On this basis, in 2011, our Movement appealed to all
1 See most recently: Nuclear Weapons: Averting a Global Nuclear Catastrophe, Appeal by Peter Maurer,
President of the ICRC, 23 April 2018 (https://www.icrc.org/en/document/nuclear-weapons-averting-global-
catastrophe).
2
http://www.icrc.org
https://www.icrc.org/en/document/nuclear-weapons-averting-global-
States to ensure that these weapons are never again used and are eliminated through a legally
binding international agreement, based on their existing obligations and commitments. Our
Movement has therefore welcomed and called on all States to promptly sign, ratify or accede
to, and faithfully implement the 2017 Treaty on the Prohibition o f Nuclear Weapons (TPNW)
and other key nuclear disarmament and non-proliferation weapons agreements.2
A large number of States, including the 122 States that adopted the Treaty and some others,
are currently considering whether to join the 80 States that have already signed and 34 that
have ratified or otherwise acceded to the TPNW.
1. Defense with weapons that are incompatible with international humanitarian law is
never an option.
A number of critics of the TPNW cite the existing international security environment or
current/potential membership in nuclear weapon-based security arrangements as cause for
remaining outside the treaty. This can hardly be reconciled with the recognition by all States
Parties to the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 2010 of the
"catastrophic humanitarian consequences of any use of nuclear weapons", with States’
commitment in the NPT 2010 Action Plan to reduce the role of nuclear weapons in security
policies” and the need to comply with international humanitarian law (IHL). Citing security
conditions or “security concerns” as justification for use or threat of use of a weapon the use
of which is generally seen as illegal undermines the requirement that States respect IHL in all
situations of conflict. It also provides an incentive for other States, many facing immediate
security threats, to seek nuclear weapons and/or participation in nuclear alliances for “self-
defence” purposes. The argument would thereby justify nuclear proliferation.
2. The best way to safeguard the NPT is to implement it.
Many critics have expressed concern about the impact of the TPNW on the NPT. Yet the
TPNW explicitly affirms that the NPT is “the cornerstone of the nuclear disarmament and non-
proliferation regime” and that its “full and effective implementation” has “a vital role to play in
promoting international peace and security”.
The TPNW complements and supports the NPT’s nuclear disarmament and non-proliferation
objectives. Indeed, the TPNW’s clear and comprehensive prohibition of nuclear weapons
creates a further disincentive for the proliferation of nuclear weapons, and represents a
concrete step towards implementing the NPT's Article VI obligation to pursue negotiations on
effective measures for nuclear disarmament. Concerns about safeguarding the NPT as the
cornerstone of nuclear disarmament efforts should focus on ensuring the full and effective
implementation of its article VI obligations and, in particular, the far-reaching disarmament
commitments undertaken in the Action Plan of the 2010 NPT Review Conference.
2 Council of Delegates resolution CD/17/R4 “Working towards the elimination of nuclear weapons”, adopted by
consensus.
3
The absence of an obligation on States Parties to the TPNW to accept safeguards3 of the
lAEA's Additional Protocol is often cited as a weakness of the Treaty. Yet this perceived
weakness also exists under the NPT.
It is also important to note that the TPNW foresees the future adoption by States Parties of
verification agreements with States that possess nuclear weapons as well as other “measures
for the verified, time-bound and irreversible elimination of nuclear-weapon programmes,
including additional protocols to this Treaty” . In this regard, its provisions are stronger than
those of the 1972 Biological and Toxin Weapons Convention that still has neither verification
provisions nor commitments to develop them. Yet it has attracted 183 State Parties.
3. National vs human security: a false dilemma.
All States face their own security concerns. Those that negotiated, adopted, signed and ratified
the TPNW face the same unstable international security environment as others. Some are also
in security partnerships or alliances with nuclear weapon States or face immediate security
threats. Yet most countries see the continuing existence of nuclear weapons as a major source
of insecurity for their populations and for future generations, and view the past failure to fulfil
nuclear disarmament obligations as a driver of current nuclear proliferation challenges,
interstate confrontations and the increasing risk of catastrophic conflict.
4. Concerns about impact of the TPNW, but where is an alternative strategy?
Critics of the TPNW offer valid but unanswerable questions about the impact of the TPNW,
over time, in promoting nuclear disarmament. Some suggest that adherence to the TPNW is
divisive and undermines the unity of purpose needed to achieve the objective of nuclear
disarmament. This misrepresents the essential character of the Treaty - namely its moral and
legal stance against nuclear weapons and against a potential global nuclear conflagration that
could impact all human beings and societies. It establishes a new global norm of international
humanitarian and disarmament law that nuclear weapons are not only morally unacceptable
but also illegal. Regardless of the time frame one believes is needed to achieve nuclear
disarmament, an unambiguous norm establishing the illegality of nuclear weapons will be
needed. The TPNW provides this clarity and a vision for all States of the end-state towards
which they must move.
The disappointing historical record of implementation of nuclear disarmament obligations and
commitments, recent threats of nuclear weapons use and ongoing modernization of arsenals
suggest that nuclear weapon States have been unable to make lasting progress on long-
standing nuclear disarmament undertakings. There is no reason to believe this will change
without countervailing normative pressure from the international community. Many important
States also took years, even decades, to adhere to the 1925 Geneva Protocol banning the use
3 “Safeguards” are a set of technical measures (e.g. on-site inspections, visits, and ongoing monitoring and
evaluation) applied by the International Atomic Energy Agency (IAEA) pursuant to bilateral agreements concluded
with States, that aim to ensure that the State is using nuclear material and technology solely for peaceful purposes,
and to confirm that these are not being misused or diverted for nuclear weapons activities. There are two principal
types of safeguards agreements administered by the IAEA: (1) the Comprehensive Safeguards Agreement (CSA),
which is the minimum standard that all non-nuclear weapon NPT States Parties are required to adhere to pursuant
to Article III of the NPT, and (2) the Additional Protocol (AP), which these States may voluntarily enter into and
which contains safeguards that are more intrusive than those of the CSA.
4
of chemical and biological weapons. Yet the Protocol helped prevent the use of such weapons
in most subsequent conflicts, even though not all major military powers had adhered to it.
In light of the above, it is unfortunate that the TPNW is often criticized without providing an
alternative strategy for addressing the current trend of steadily increasing risks of nuclear
weapon use, for reversing modernization programs that are making nuclear weapons more
useable or for time-bound implementation of the many crucial commitments made by State
Parties to the NPT in its 2010 Action Plan and on many previous occasions. Criticism without
alternatives simply reinforces an increasingly dangerous status quo.
In reality, the TPNW's overall success and impact depend on the broadest possible adherence
by a wide variety of States including neutral States, developing countries, regional leaders,
those associated with nuclear weapon-based military arrangements and, eventually, by all
States.
The concrete evidence now available of the massive, indiscriminate and irreparable health,
environmental and societal impacts of nuclear weapons and of their inconsistency with
international humanitarian law should not be weighed against unpredictable security scenarios
or questions about impacts of the TPNW that will only be answered by historians. Judgments
about the TPNW should be based on the responsibility of all States to protect humanity from
the scourge of a nuclear catastrophe that would add extraordinary levels of human suffering
to current unmet needs, and on States’ long standing obligations under international
humanitarian and disarmament law.
+++
“We know now more than ever before that the risks are too high, the dangers too real. It is
time for States, and all those in a position to influence them, to act with urgency and
determination to bring the era o f nuclear weapons to an end."
Peter Maurer, President o f the ICRC
Statement to the Geneva diplomatic corps, 18 February 2015
5
ADVISORY SERVICE
ON INTERNATIONAL HUMANITARIAN LAW
2017 Treaty on the Prohibition
of Nuclear Weapons
The Treaty on the Prohib ition o f Nuclear W eapons (TPNW ) is the first globally applicable m ultilateral agreem ent to
com prehensively prohibit nuclear weapons. It is also the first to include provisions to help address the humanitarian
consequences o f nuclear weapon use and testing. The Treaty com plem ents existing international agreem ents on
nuclear weapons, in particular the Treaty on the Non-Proliferation o f Nuclear W eapons, the Com prehensive
Nuclear-Test-Ban Treaty and agreem ents establishing nuclear-weapon-free zones.
The TPN W was adopted by a United Nations dip lom atic conference on 7 July 2017 and opened for signature on
20 Septem ber 2017. It w ill enter into force once 50 States have notified the UN Secretary-G eneral tha t they agree
to be bound by it.
W hat is the purpose and
scope o f the TPNW ?
The TPN W was developed in
response to long-standing
concerns about the catastrophic
hum anitarian consequences
tha t any use o f nuclear weapons
would entail.
The Treaty recognizes tha t the
use of nuclear weapons would
be abhorrent to the principles of
hum anity and the dictates of
public conscience, and it
com prehensively prohibits
nuclear weapons on the basis of
international hum anitarian law
(IHL) - the body o f law that
governs the use o f all weapons
in arm ed conflict. It contains
strong com m itm ents to
assistance of the victim s of
nuclear weapon use and testing,
and to the rem ediation of
contam inated environm ents.
The T reaty also provides
pathways fo r adherence by all
States, including those that
possess, or are associated with,
nuclear weapons.
A ren 't nuclear w eapons
already prohibited under
international law?
In a 1996 A dvisory O pin ion,1 the
International Court o f Justice
concluded that the threat or use
o f nuclear weapons would
generally be contrary to the
requirem ents o f the international
law applicable in armed conflict,
particularly the princip les and
rules o f IHL. However, it left
open the question of the
lawfulness of threatening to use
or using nuclear weapons in an
extrem e situation o f self-
defence in which the very
survival of a State is at stake.
Thus, the Court did not construe
IHL to categorically prohibit the
use o f nuclear weapons.
In addition to the princip les and
rules o f IHL, there are a num ber
o f m ultilateral agreem ents tha t
regulate nuclear weapons.
However, none o f these
establishes a com prehensive
set o f prohibitions applicable at
the global level. The Treaty on
the Non-Proliferation o f Nuclear
W eapons (NPT) is a
cornerstone of international law
governing nuclear weapons. It
prohibits State Parties tha t do
not a lready have nuclear
weapons from developing or
acquiring them. State Parties
tha t possessed nuclear
weapons at the tim e o f the
NPT's adoption are allowed to
retain the ir weapons but are
barred from transferring them or
helping others to develop or
acquire them. A ll NPT States
Parties are required to pursue
negotiations on effective
m easures to advance nuclear
disarm am ent.
A num ber o f treaties also
establish parts o f the world as
nuclear-weapon-free zones.
These treaties generally contain
1 International Court o f Justice, “Legality o f the threat or use o f nuclear weapons”, Advisory Opinion, I.C.J. Reports 1996, 1996,
pp. 226-267.
prohibitions on a w ide range of
nuclear-weapon-re lated
activities tha t are applicable in
tha t region. Such treaties are in
force in Africa, Latin Am erica
and the Caribbean, and Central
and South-East Asia.
Until now, nuclear w eapons had
not been the subject o f a
globally applicable prohibition
treaty tha t all S tates could join.
The adoption o f the TP N W has
filled th is gap.
W hat are the main
obligations o f the TPNW ?
Prohibition
It is prohibited under any
circum stances to use or
threaten to use nuclear
weapons (or other nuclear
explosive devices). It is equally
prohibited to develop, test,
produce, manufacture,
otherw ise acquire, possess or
stockpile them (Art. 1.1 (a) and
(d)).
It is also prohibited fo r a State
Party to transfer nuclear
weapons, to receive the transfer
o f or control over nuclear
weapons or to allow the
stationing, installation or
deploym ent o f nuclear w eapons
in its territory or at any place
under its jurisd iction or control
(Art. 1.1(b), (c) and(g )).
Furthermore, it is prohibited to in
any w ay assist, encourage or
induce anyone to engage in any
activ ity prohibited by the Treaty
(Art. 1.1 (e)).
Elimination ofnuclear
weapons
W ithin 30 days of becom ing a
party to the Treaty, a State must
subm it a declaration to the UN
Secretary-G eneral indicating if:
• it has previously possessed
nuclear weapons,
• it currently possesses such
weapons, or
• there are nuclear weapons
o f another State in any
place under its jurisd iction
or control (Art. 2).
The answers to these questions
determ ine the next steps a State
Party m ust take to ensure the
elim ination o f nuclear weapons:
• A State Party tha t did not
possess nuclear
w eapons on the date that
the Treaty was adopted
(7 July 2017) and has an
existing safeguards
agreem ent w ith the
International A tom ic Energy
Agency (IAEA) must
maintain tha t agreem ent
(Art. 3.1).
If the State does not have
safeguards ob ligations in
force, it m ust conclude a
com prehensive safeguards
agreem ent w ith the IAEA.
This agreem ent m ust enter
into force w ith in 18 months
from the date on which the
State becam e a State Party
(Art. 3.2).
• A State Party that
possessed nuclear
w eapons after 7 Ju ly2017
and destroyed them prior
to jo in ing the Treaty must
cooperate w ith an
international authority
mandated to verify the
irreversib le elim ination of
the S tate's nuclear weapon
programme. This authority
w ill be designated by a
m eeting o f S tates Parties.
The State Party m ust also
conclude a safeguards
agreem ent w ith the IAEA
(Art. 4.1).
• A State tha t possesses or
contro ls nuclear w eapons
at the tim e that it becom es
a State Party must
im m ediate ly remove its
weapons from operational
status. It m ust also destroy
them as soon as possible but
not la ter than a deadline to be
established by the first
m eeting o f States Parties, in
accordance w ith a legally
binding, tim e-bound plan for
the verified and irreversible
elim ination o f the State
Party's nuclear weapon
program m e (Art. 4.2). The
State Party m ust also
conclude a safeguards
agreem ent w ith the IAEA
(Art. 4.3).
• A State Party tha t has the
nuclear w eapons o f
another State on its
territory (via stationing,
installation or deploym ent)
must ensure tha t such
weapons are removed as
soon as possible but not
later than a deadline to be
determ ined by the first
meeting o f S tates Parties
(Art. 4.4).
Victim assistance and
environmental remediation
The T reaty recognizes the
suffering and harm caused to
the v ictim s o f nuclear weapon
use and testing as well as the
im pact on indigenous peoples
and the environment.
A State Party w ith individuals
under its jurisd iction who are
v ictim s o f nuclear weapon use
or testing m ust provide them
w ith m edical care, rehabilitation
and psychological support, and
provide fo r the ir socio-econom ic
inclusion (Art. 6.1).
S im ilarly, a State Party whose
territory has been contam inated
through nuclear weapon use or
testing m ust take m easures
towards the environm ental
rem ediation o f affected areas
(Art. 6.2).
International assistance and
cooperation
States Parties m ust cooperate
to facilita te the successful
im plem entation o f the Treaty.
Each State Party also has the
right to seek and receive
assistance to fulfil the Treaty's
requirem ents (Art. 7.1 and 7.2).
This cooperation is fortified by a
requirem ent to assist States
Parties affected by nuclear
weapons. Each State Party in a
position to do so m ust provide
technical, material and financial
assistance to States Parties that
have been affected by nuclear
weapon use or testing, to help
them im plem ent the Treaty.
They m ust also assist the
v ictim s o f nuclear weapon use
or testing (Art. 7.3 and 7.4).
Assistance can be provided
through the United Nations,
international or regional
organizations,
non-governm ental
organizations, the International
Red Cross and Red Crescent
M ovem ent or on a bilateral basis
(Art. 7.5).
W hat m ust a State do to join
the T reaty?
The Treaty rem ains open for
signature indefinite ly and can be
signed at UN headquarters in
New York.
The T reaty will enter into force
90 days after the deposit o f the
50th instrum ent o f ratification,
acceptance, approval or
accession with the UN
Secretary-G eneral, the T reaty 's
depositary.
A State tha t w ishes to be bound
by the Treaty m ust subm it an
instrum ent o f ratification,
acceptance, approval or
accession to the U n Secretary-
General. It w ill becom e binding
upon tha t State 90 days later or,
for the first 50 States tha t ratify,
upon the entry into force o f the
Treaty.
W hat m ust States do to
im plem ent the Treaty and
how is com pliance ensured?
Adoption of domestic
measures
Each State Party is required to
take all necessary m easures to
im plem ent the Treaty's
provisions (Art. 5). This includes
the adoption o f legal,
adm in istra tive and other
measures, including the
imposition o f penal sanctions, to
prevent and suppress any
vio lations com m itted by
persons, or on territory, under its
jurisd iction or contro l (Art. 5.2).
To th is end, depending on the
State's dom estic law and
procedure, specific dom estic
legislation may need to be
adopted and the regulations
governing the armed forces
amended.
In addition, S tates m ust take
m easures towards the
elim ination o f nuclear weapons,
the provision o f victim
assistance, environm ental
remediation, and international
assistance and cooperation in
accordance with the respective
obligations under the Treaty
(Art. 5).
Meetings of States Parties
The im plem entation o f the
T reaty is monitored through
m eetings o f S tates Parties. A
firs t meeting o f States Parties
w ill be convened w ith in one year
o f the T reaty 's entry into force.
These m eetings w ill assess the
T reaty 's status and
im plem entation and take
decisions to advance the
elim ination o f nuclear weapons
(Art. 4). Add itional meetings will
be held on a biennial basis,
unless States Parties decide
otherw ise (Art. 8.1 and 8.2).
W hat support is availab le for
jo in ing and im plem enting the
TPNW ?
The status o f signatures and
ratifications o f the T P N W is
available online:
https://treaties.un.org/Pages/V i
ew Deta ils.aspx?src=TR EATY&
mtdsg no=XXVI-
9&chapter=26&clang= en .
The ICRC has prepared
publications to assist S tates in
understanding the Treaty's
requirements. This includes a
ratification kit describ ing the
procedures tha t a State must
fo llow in order to sign, ratify,
accept, approve or accede to
the TPNW . The kit also contains
model instrum ents o f signature
and adherence for S tates to
deposit w ith the UN Secretary-
General. These m aterials can
be found on the ICRC website
(w w w .icrc.org).
The ICRC is ready to assist
States in im plem enting the
TPNW , within the scope of its
m andate and expertise in IHL.
The ICRC's delegations
throughout the world and its
Departm ent o f International Law
and Policy in G eneva can
provide guidance on
im plem enting the Treaty's
requirem ents in dom estic
legislation and any further
inform ation or clarification that
m ay be required.
Assistance to im plem ent various
aspects o f the T reaty may also
be provided through National
Red Cross and Red Crescent
Societies and the International
Federation of National Red
Cross and Red Crescent
Societies.
A num ber o f other
organizations, such as the
United Nations O ffice for
D isarm am ent Affairs, have also
prepared im portant tools to help
S tates understand and
im plem ent the TPNW.
04.2018
https://treaties.un.org/Pages/Vi
http://www.icrc.org