CYIL vol. 12 (2021)

maria manuel meruje

CYIL 12 (2021)

1. Introduction On 5 March, 2020, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 1 concluded on 1 July, 1968, turned 50 years old since its entering into force in the international legal order in 1970. On 11 May, 1995, the NPT was extended indefinitely. This Treaty was designed to prevent the spread of nuclear weapons (Article I), to promote the objectives of nuclear disarmament and particularly to general and complete disarmament (Article VI), as well as cooperation in the peaceful use of nuclear energy (Article IV). The NPT was discussed and drafted by the international community following the increase of nuclear weapons tests, which began with the first test carried out by the USA, followed by the nuclear weapon tests carried out by Russia (former USSR Union of Soviet Socialist Republics) and, in 1952 by the United Kingdom, as well as subsequently by France and the People’s Republic of China. 2 The detonation of the two nuclear weapons on 6 and 9 August 1945, over the cities of Hiroshima and Nagasaki in Japan, demonstrated the capacity for mass destruction using nuclear weapons with the instantaneous loss of thousands of human lives and the long-term effects of ionizing radiation. These kinds of events were necessary to avoid forever. Although the NPT has significant longevity, its efficiency has been questioned by many authors. Some authors state that fast technological development is an opponent to full implementation, while others, such as Olli Heinonen, point to three major issues that have proven to be problematic and difficult to solve over the last 20 years. These include “(1) the increased dissemination of nuclear technology and ‘know-how’; (2) a renewed drive on the part of (a few) state as well as non-state actors seeking to acquire nuclear weapons; and (3) the emergence of clandestine nuclear procurement networks ”. 3 Even if difficulties exist in implementation of the NPT, the NPT is recognized as a fundamental binding instrument of international public law, as well as the only binding commitment in a multilateral treaty to the goal of disarmament by the nuclear-weapon States to maintain peace worldwide. 4 The NPT has been living side by side with the deterrence doctrine. In the military field, the concept of deterrence as a military strategy (presented by Thomas C. Schelling) is still in place. 5 In this author’s understanding, the potential capacity to harm a state is used as a deterring factor for another state. The fact that a state possesses nuclear weapons is a sufficient deterrent considering the incalculable damage it may cause to another state. Besides this theory of deterrence, in the specific field of nuclear weapons, it has also been applied to the doctrine of mutual assured destruction or MAD Doctrine. In parallel to the NPT, such military doctrines may explain the several Anti-Ballistic Agreements that have been signed over the last decades between the US and Russia to avoid a nuclear war. Nevertheless, the traditional instruments used to prevent nuclear war, i.e., international conventions such as the NPT and military theories, may be at risk when entities such as terrorist groups operate. These do not react as an organized state, and use unpredictability as 1 See: https://www.iaea.org/sites/default/files/publications/documents/infcircs/1970/infcirc140.pdf. 2 See : https://www.ctbto.org/nuclear-testing/history-of-nuclear-testing/nuclear-testing-1945-today/. 3 HEINONEN, Olli “International Atomic Energy Agency Inspections in Perspective”, in Report Moving Beyond Pretense: Nuclear Power And Nonproliferation (Strategic Studies Institute, US Army War College, 2014) pp. 303–310 (available at: www.jstor.org/stable/resrep12036.13). 4 See: https://www.un.org/disarmament/wmd/nuclear/npt/. 5 SCHELLING, Thomas C. Arms and Influence (New Haven: Yale University Press, 2008), pp. 1–34.

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