Interpretations and Analysis
Article 1(1)(a): The Prohibition on Developing, Producing, Manufacturing, and Otherwise Acquiring Nuclear Weapons or Other Nuclear Explosive Devices
Development, production, manufacture, and other forms of acquisition of any nuclear weapon or other nuclear explosive devices are prohibited under Article 1(1)(a) of the TPNW.
The prohibited development of a nuclear weapon or other nuclear explosive device means any of the actions and activities intended to prepare for its production. This covers relevant research, computer modelling of weapons, and the testing of key components, as well as sub-critical testing (i.e. experiments simulating aspects of nuclear explosions using conventional explosives and without achieving uncontrolled nuclear chain reactions). Explosive testing constitutes unlawful development, but as discussed below this is also explicitly prohibited in Article 1(1)(a).
Production or procurement of fissile material constitutes prohibited development when this is done with the intent to produce nuclear weapons or other nuclear explosive devices. This is the case even though the production or procurement of fissile material is not explicitly mentioned in Article 1(1)(a) of the TPNW.
The concepts of production and manufacture overlap significantly, covering the processes that are intended to lead to a completed, useable weapon or device. In general parlance, “production” is a broader term than “manufacture”: manufacture describes the use of machinery to transform inputs into outputs. Taken together, these concepts encompass not only any factory processes, but also any improvisation or adaptation of a nuclear explosive device.
The prohibition on “otherwise acquiring” a nuclear weapon or other nuclear explosive device is a catch-all provision that encompasses any means of obtaining nuclear weapons or other nuclear explosive devices other than through production. This could be through import, lease, or borrowing from another source or, in theory, by recovering a lost nuclear weapon or capturing or stealing one. This prohibition overlaps with the one in Article 1(1)(c) not to receive the control over nuclear weapons or other nuclear explosive devices, which is discussed below.
Under Article II of the NPT, a similar obligation is imposed not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, but this applies only to non-nuclear-weapon states. That provision — and indeed the NPT as a whole — does not generally prohibit the development of any nuclear weapons or other nuclear explosive devices.
All the nine nuclear-armed states have been actively engaged in development and production of new nuclear weapons in 2018–2019. Although explosive testing has been curtailed, North Korea has conducted ballistic missile tests and is believed to be continuing to produce fissile material for military purposes.
There are also potential compliance concerns on the horizon with respect to Iran and Saudi Arabia. Iran has recently restarted uranium enrichment (albeit not to a level sufficient for use in a nuclear explosive device) and has threatened to no longer comply with its obligations under the Joint Comprehensive Plan of Action. The United States had previously withdrawn its support for the agreement and re-imposed economic sanctions on Iran.
Saudi Arabia has explicitly threatened to swiftly acquire nuclear weapons should Iran do so. Saudi Arabia has also refused to accept adequate safeguards on nuclear material under its jurisdiction or control. It maintains in force a Small Quantities Protocol with the International Atomic Energy Agency (IAEA) even though the fissile material it possesses exceeds the maximum allowed under that protocol. In September 2019, Saudi Arabia’s new energy minister, Prince Abdulaziz Bin Salman, announced at a conference in Abu Dhabi that the country wants to extract and enrich uranium for its new nuclear energy programme, including construction of two nuclear reactors. Saudi Arabia is already in talks with companies from the United States, Russia, South Korea, China, and France for the project. However, Saudi Arabia is unwilling to sign a contract that forbids them from enriching uranium or from reusing used raw materials. These are techniques that can also be used to make weapons.
Article 1(1)(a): The Prohibition on Testing of Nuclear Weapons or Other Nuclear Explosive Devices
The prohibition on testing in Article 1(1)(a) of the TPNW bans the detonation of a nuclear weapon or other nuclear explosive device. It is therefore limited to explosive testing. All non-explosive forms of testing are covered by the prohibition on development in the TPNW. All explosive testing is similarly prohibited under the CTBT, but that treaty is, as is the case with the TPNW, not yet in force. (Because of the relative simplicity of the entry-into-force provision of the TPNW, it can be expected that it will enter into force before the CTBT.)
According to the Arms Control Association’s “The Nuclear Testing Tally”, since the first nuclear test explosion on 16 July 1945, at least eight states have between them conducted an estimated 2,056 nuclear test explosions at dozens of test sites around the world.7 No explosive testing is known to have occurred in the period covered by this edition of the Ban Monitor.
North Korea is the only state that is known to have engaged in explosive nuclear testing since 1998, with its last test occurring in 2017. India and Pakistan both exploded nuclear devices in 1998. France completed its last nuclear explosive test in 1996. The United States conducted its last explosive tests in 1992. In November 2017, however, the United States decided to shorten its testing readiness timeline from between 24 and 36 months to only 10 months. (bit.ly/2K8mIVs) The United Kingdom undertook its last explosive test in 1991. China’s last explosive nuclear test was in July 1996, only a few months prior to the adoption of the CTBT by the UN General Assembly.
The Soviet Union/Russia ostensibly undertook its last explosive test in 1990. In late May 2019, a senior United States official accused Russia of potentially having conducted low-yield explosive testing of nuclear weapons but did not adduce any evidence in support of this assertion. (nyti.ms/2XF24Qy) Other authorities within the US Government, however, contested the official’s allegations, which were also angrily rebutted by Russia. (reut.rs/2WyCzTK)
Article 1(1)(a): The Prohibition on Possession and Stockpiling of Nuclear Weapons or Other Nuclear Explosive Devices
The prohibition on possession of any nuclear weapon or other nuclear explosive device under Article 1(1)(a) makes it illegal to have a nuclear weapon or other nuclear explosive device. Possession does not necessarily entail ownership. In contrast, the notion of stockpiling implies (but does not require) that the possessor also has ownership of that weapon or device. One nuclear weapon or other nuclear explosive device is sufficient to constitute a stockpile.
As of October 2019, nine states possessed and stockpiled nuclear weapons. Through the Manhattan Project in the first half of the 1940s, the United States became the first state to develop and possess nuclear weapons. The Soviet Union, the United Kingdom, France, and China followed in 1949, 1952, 1960, and 1964, respectively. India conducted a “peaceful” nuclear explosion in 1974 but did not at that time advance to weaponisation of a nuclear explosive device. In 1998, however, India and Pakistan both conducted nuclear explosive tests and proceeded to build up their nuclear arsenals. North Korea announced its withdrawal from the NPT in 2003 and accelerated its nuclear-weapons programme. A first nuclear explosive device was completed and tested in 2006. Israel has never openly admitted to possessing nuclear weapons but is widely believed to have acquired nuclear weapons in the late 1960s.
South Africa produced nuclear weapons in the late 1970s but decided in 1989 to give up its nuclear-weapon capability and acceded to the NPT as a non-nuclear-weapon state in 1991. In 1994, the IAEA confirmed that South Africa had converted its nuclear programme to exclusively peaceful applications. Belarus, Kazakhstan, and Ukraine acquired nuclear weapons following the collapse of the Soviet Union but voluntarily handed them over to Russia and joined the NPT as non-nuclear-weapon states in the 1990s.
Article 1(1)(b): The Prohibition on Transfer of Nuclear Weapons or Other Nuclear Explosive Devices
The transfer of any nuclear weapon or other nuclear explosive device or control over them “to any recipient whatsoever” is prohibited under Article 1(1)(b) of the TPNW. This is so whether this occurs “directly or indirectly”. This makes it illegal to transmit possession or ownership to any other state or to any natural or legal person (e.g. a company or organisation). Unlawful transfer does not necessarily involve payment or other form of consideration. The prohibition on indirect transfer means it is unlawful to transmit the key components of any nuclear explosive device in separate instalments or via intermediaries or third parties where there is knowledge that they will be used to produce a nuclear weapon or other nuclear explosive device.
Nuclear sharing was one of the key issues in the NPT negotiations. Several of the 18 participating states disagreed strongly about the degree to which allies should be allowed to share hardware and decision-making powers. In the end, a tacit agreement was made between key states that foreign deployment would be acceptable as long as the weapons were kept under the control of the owner/possessor state. However, any transfer of weapons to the control of the host state was deemed unacceptable.
Under Article I of the NPT, the five “nuclear-weapon states” parties have committed never to transfer nuclear weapons “to any recipient whatsoever”. The NPT does not include a corresponding prohibition on non-nuclear-weapon states to transfer nuclear weapons, directly or indirectly. This means that non-nuclear-weapon states are not explicitly prohibited under the NPT from providing others with the key components for a nuclear weapon or other nuclear explosive device. This important lacuna is addressed by Article 1(1)(b) and (e) of the TPNW. If a single state provides another state with all the key components of a nuclear weapon or nuclear explosive device, the former state violates subparagraph (b) on transfer. If a single state provides another state with only one of the key components, the former state would normally violate subparagraph (e) on assistance.
The United States violates this provision by virtue of its export of key components of nuclear weapons to the United Kingdom. The United Kingdom and the United States have long been engaged in close nuclear cooperation and trade. The United Kingdom’s nuclear- weapon system is in large measure imported from the United States: the UK Trident warhead design is based on the US W-76 warhead; the Trident SLBM guidance system and a number of Trident warhead components are imported directly from the United States; the Trident detonator is designed and built in the United States; and the United Kingdom’s Trident II SLBMs are on lease from the United States. (on.ft.com/30ShqDo ) This does not comply with the prohibition on indirect transfer of nuclear weapons in the TPNW (and its compliance with the corresponding obligation under the NPT is highly questionable).
Under NATO’s nuclear-sharing scheme, nuclear weapons stationed in Europe by the United States may be transferred to and used by host states Belgium, Germany, Italy, and the Netherlands prior to their use as part of a “dual key” arrangement. Such transfers, were they to ever occur, would violate both the NPT and the TPNW.
Article 1(1)(c): The Prohibition on Receiving Transfer or Control of Nuclear Weapons or Other Nuclear Explosive Devices
Article 1(1)(c) of the TPNW prohibits receiving the transfer of or control over any nuclear weapons or other nuclear explosive devices directly or indirectly. To “receive” a nuclear weapon or other nuclear explosive device is to take possession or control over it. This broad notion does not require that ownership also passes to the recipient. The prohibition on indirect receipt covers accepting the key components of any nuclear weapon or other nuclear explosive device as well as an assembled version. This extends to transfers made through intermediaries.
Article 1(1)(c) of the TPNW follows a similarly worded provision in Article II of the NPT, but the corresponding prohibition in that treaty applies only to those states that are designated as non-nuclear-weapon states.
As discussed above, the United Kingdom leases Trident missiles and imports other nuclear components from the United States, which does not comply with the prohibition on receiving the transfer or control of nuclear weapons or other nuclear explosive devices.
If the United States ever handed over control over the nuclear weapons stationed in Belgium, Germany, Italy, or the Netherlands to the host states for use in their aircraft this would amount to a violation of Article 1(1)(c) of the TPNW by those four states (as well as of the NPT).
Article 1(1)(d): The Prohibition on Using Nuclear Weapons or Other Nuclear Explosive Devices
Under Article 1(1)(d) of the TPNW, states parties undertake never under any circumstances to use nuclear weapons or other nuclear explosive devices. Preventing use of is a central aim of the Treaty.
To use a nuclear weapon or other nuclear explosive device is to launch, release, deliver, or detonate it with hostile intent or for so-called “peaceful” use. (bit.ly/2wGTC7z ) Intent can be discerned from the circumstances and does not have to be publicly declared. Possession or deployment of nuclear weapons for the purpose of “deterrence” does not amount to their use for the purpose of the TPNW but is caught by the prohibition on possession in Article 1(1)(a).
Nuclear weapons have not been used since August 1945 when the United States dropped a nuclear weapon first on Hiroshima and then, three days later, on Nagasaki.
Other nuclear explosive devices have not been used in armed conflict, though so-called “peaceful” nuclear explosions were conducted for civil engineering purposes between the second half of the 1950s and the end of the 1980s by the Soviet Union and the United States. The aims of the detonations were to achieve large-scale excavation for canals, ports, and reservoirs; facilitate oil and gas recovery; create underground cavities for gas, oil, or waste storage; and extinguishing fires in gas fields.
Article 1(1)(d): The Prohibition on Threatening to Use Nuclear Weapons or Other Nuclear Explosive Devices
Threatening to use a nuclear weapon or other nuclear explosive device is also a violation of Article 1(1)(d) of the TPNW. This is the case whether such use would itself be a violation of international law or whether the device is used in legitimate self-defence against foreign aggression. It is therefore broader in scope than the prohibition on threat of force within Article 2(4) of the UN Charter.
To violate the TPNW, a threat of use must be credible in the circumstances. This means that the threat must emanate from a person in a position to either effect or direct the use of a nuclear explosive device. Typically, therefore, such a threat would be made by a senior government official in a nuclear-armed state.
While some take the view that a policy of nuclear “deterrence” in and of itself constitutes an unlawful threat to use nuclear weapons, the Ban Monitor is more conservative. It believes that in addition to being credible in the circumstances, a prohibited threat must also be specific as to the target of threatened use. Prohibited threats may, however, be implicit as well as explicit. A stated threat does not, therefore, have to refer to use of nuclear weapons, though it is more likely to violate the TPNW should it do so. But merely enunciating the circumstances under which nuclear weapons will be used, such as through a policy of “deterrence”, is not sufficient.
In certain circumstances of tension — for example where a nuclear-armed adversary is on the brink of war — a show of force by means of ICBM testing or an explosive test of a nuclear weapon could amount to an unlawful threat to use nuclear weapons (along with other violations of the TPNW).
In mid-April 2019, as India and Pakistan came close to the point of major conflict and the risk of actual use of nuclear weapons loomed large, Indian Prime Minister Narendra Modi said publicly: “We have the mother of nuclear bombs. I decided to tell [Pakistan], do whatever you want to do but we will retaliate.” In the view of the Ban Monitor, this is the most overt instance of a state threatening to use nuclear weapons in recent times.
In July 2018, US President Donald Trump tweeted the following message (all in capitals in the original text) to Iran’s President Hassan Rouhani: “Never, ever threaten the United States again or you will suffer consequences the likes of which few throughout history have ever suffered before.” This can be considered an implicit threat to use nuclear weapons against Iran. In May 2019, President Trump also declared on Twitter that he would bring about “the official end of Iran” should the latter want to fight. While ambiguous, some consider this also to constitute threatening to use nuclear weapons.
Article 1(1)(e): The Prohibition on Assisting Prohibited Activities
Under Article 1(1)(e) of the TPNW, states parties undertake never under any circumstances to assist anyone to engage in any activity prohibited to a state party under the Treaty. This paragraph is one of the most discussed and debated of all the provisions in the TPNW. The Ban Monitor has concluded that a total of 11 states currently do not comply with this obligation. Their practices contravene the prohibition on assistance in different ways, discussed under the headings below.
The prohibition on assistance in the TPNW means a state party is precluded from knowingly assisting any other state or natural or legal person to develop, test, produce, manufacture, otherwise acquire, possess, stockpile, transfer, receive, threaten to use, or use nuclear weapons or other nuclear explosive devices. Also outlawed is assistance for the deployment by any other state of any nuclear weapons or other nuclear explosive devices anywhere under a state party’s jurisdiction or control. The assistance must make a substantive contribution to a prohibited activity: insignificant contributions (for example, a screw or bolt that is used in a nuclear missile) would not violate the prohibition.
The forms of assistance that are unlawful can be, among others, financial (such as through economic assistance for nuclear-weapon production); technological (for example, by the export of equipment/components for such production); operational (for instance, by conventional military support for nuclear bombing); technical (through the provision of expert information); or human (such as by seconding nuclear scientists to assist in another state’s nuclear-weapon programme).
Under the NPT, there is no general obligation imposed on all states parties not to assist the development or manufacture of nuclear weapons or other nuclear explosive devices. Under NPT Article I, each nuclear- weapon state party undertakes not in any way to assist, encourage, or induce any non-nuclear-weapon state to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices. There is, however, no similar prohibition on any of the five nuclear-weapon states parties of assisting, encouraging, or inducing another nuclear-weapon state to engage in those activities.
Trade in Nuclear Material
The transfer of nuclear technology or material is not prohibited by the TPNW unless the state party responsible for the transfer knows that the nuclear technology or material in question is likely to be used in a way that contravenes the prohibitions of the TPNW. Such transfers by nuclear-weapon states to any recipient are also prohibited under Article I of the NPT. Otherwise, states parties to the TPNW – just like parties to the NPT and the CTBT – are implicitly permitted to trade in nuclear raw materials, fuel, and equipment for purely peaceful purposes, including with nuclear-armed states and states not party to the TPNW.
If, for instance, a TPNW state party exports uranium to a nuclear-armed state on the understanding that the uranium would be used for nuclear energy production or research, the exporting state could not be held responsible if the nuclear-armed state unexpectedly decided to use the uranium for weapons development instead. This would, though, be likely to affect the legality of future exports of nuclear material to that state.
Corporate and State Responsibility
A company that develops or produces key components for a nuclear weapon or other nuclear explosive device would be engaging in prohibited assistance under the TPNW. The provision of ballistic missile technology, for example, would amount to unlawful assistance where it was known that the missile programme of the recipient of the assistance was intended to deliver nuclear warheads.
Depending on the circumstances, a parent company can also be legally responsible for the acts of its subsidiary. The general position in domestic law is that a parent company is not liable where its subsidiary acts unlawfully. However, jurisprudence has established a number of exceptions to this general principle, allowing the “veil of separate legal status … to be pierced”. One is where there is wrongdoing by the parent company; another concerns activity that gives the impression that the parent company has made a commitment on behalf of its subsidiary; and a third is where there is interference by the parent company in the management of its subsidiary. Under international law, violation of a disarmament treaty or customary disarmament law would suffice to render the state on whose territory the parent company is incorporated and/ or where it has its headquarters responsible.
In addition, any company that is engaged in a joint venture that develops or produces key components for a nuclear weapon or other nuclear explosive device could thereby be engaging in prohibited assistance even if it does not itself contribute materially to the nuclear-weapon development or production. This is so wherever a joint venture is akin to a partnership with unlimited liability. It may also occur when the participating companies establish the joint venture as a new body corporate, holding shares in that company. Under international law, the states on the territory of which the participating and shareholding companies are incorporated and/or have their headquarters would be responsible for the acts of the joint venture where those do not comply with an international treaty or customary law on disarmament.
Belarus, Italy, Germany and the Netherlands are not in compliance with the prohibition on assisting development and manufacturing because they allow companies that are incorporated or have headquarters or production facilities on their territory to be involved in activities that constitute assistance for development and/or production of nuclear weapons.
The Belarusian company, Minsk Automotive Factory, is the manufacturer of the self- propelled mobile launchers for the Russian Topol-M ICBM. Leonardo (Italy) (formerly Finmeccanica) is involved in the design, development, and delivery of Transporter Erector Replacement Vehicles for the US Minuteman III ICBM arsenal.
The multinational company Airbus Group is legally incorporated in the Netherlands and falls under Dutch law and jurisdiction. It is currently involved in the development and production of the French Navy’s M51 nuclear-tipped SLBM (but not the warhead) through its German- headquartered subdivision Airbus Defence and Space. Since Airbus Group considers that the actions of its subsidiaries form part of the work of Airbus as a group entity, should either Germany or the Netherlands sign and ratify or accede to the TPNW, they would not be in compliance with Article 1(1)(e) if Airbus and its subsidiaries were to engage in any further assistance of the development and production of nuclear-capable weapons.
Under Article 5 of the TPNW, states parties are obligated to adopt measures to implement their obligations under the Treaty and to suppress violations by persons, or on territory, under their jurisdiction or control. Allowing private companies to produce or assist in the production of nuclear weapons would clearly constitute a violation of Article 5 of the Treaty as well as Article 1(1)(e).
The TPNW does not explicitly prohibit financing of nuclear-weapon programmes. However, the prohibition on assistance renders unlawful direct funding of any of the prohibited activities listed in the other subparagraphs of Article 1(1). This prohibition encompasses not only sovereign funds but also private banks and individuals, as discussed above in the section on corporate and state responsibility.
While the mere purchase of shares in a company that is engaged in nuclear-weapon activities is not per se a wrongful act under the TPNW, divestment from such companies is a growing trend. When screening criteria are applied that exclude companies engaged in nuclear-weapons activities from investment, these companies could in the future be influenced to alter their practices.
Assistance with the Possession and Stockpiling of Nuclear Weapons
As discussed above, continuing non-compliance with the prohibition on assistance concerns the extensive nuclear cooperation between the United Kingdom and the United States with respect to the Trident SLBM. The 1958 Mutual Defense Agreement is a bilateral treaty between the United States and the United Kingdom on nuclear weapons cooperation. It has been renewed several times, most recently in 2014 covering the period through to 2024. In 2017, it was reported that the United Kingdom’s Trident missiles are in a “common pool” shared with the US and maintained at Kings Bay, in the US state of Georgia.
The cooperation between the United Kingdom and France for the maintenance of nuclear weapon stockpiles also amounts to prohibited assistance under the TPNW. In June 2018, the Swedish Defence Research Agency reported that the United Kingdom and France were “closer to each other than ever on nuclear weapons cooperation”. The two states’ cooperation on nuclear weapons’ issues is supported by the 2010 Teutates Treaty to develop technologies for safe and effective maintenance of both states’ nuclear stockpiles. The Teutates Treaty concerns two main areas: simulation of nuclear detonations and simulation of nuclear warhead function.
The hosting of US nuclear warheads by five non-nuclear NATO allies (Belgium, Germany, Italy, the Netherlands, and Turkey) is explicitly prohibited by Article 1(1)(g), but also constitutes prohibited assistance with possession and stockpiling. Belgium, Germany, Italy, and the Netherlands also assist possession and stockpiling when they participate with nuclear-capable aircraft in NATO’s annual nuclear drill, Steadfast Noon.
Allowing the Testing of Nuclear-Capable Missiles
When a state allows the testing of nuclear-capable missiles by foreign nuclear-armed states on a test site on its territory, this contravenes the prohibition on assistance (with respect to the development of nuclear weapons). Two non-nuclear-armed states host such sites: Kazakhstan hosts Russian missile tests at Sary Shagan test site, while the Marshall Islands hosts US missile tests at Kwajalein Atoll. In both cases, the tests are carried out on land that is leased to the respective nuclear-armed state through long-term contracts. The test site at Kwajalein Atoll is periodically used for testing of the intercontinental-range Minuteman and Trident (nuclear) missiles. Russian missile tests at Sary Shagan amount to prohibited assistance in contravention of Article 1(1)(e) where the missiles used are designed to carry nuclear warheads. In late July 2019, Russia’s official news agency, TASS, reported that Russian strategic missile forces conducted a test launch of a Topol ICBL from the Kapustin Yar practice range in Astrakhan in Russia. The missile targeted and reportedly successfully hit the target at the Sary-Shagan range in Kazakhstan.
Kazakhstan is already obligated not to “assist” the development or manufacture of nuclear weapons through its adherence to the Central Asian nuclear-weapon-free- zone treaty. Kazakhstan ratified the TPNW in August 2019. When the Treaty enters into force and Kazakhstan is fully bound by the obligations set out in the Treaty, the hosting of tests of nuclear-capable missiles would amount to assistance with development of nuclear weapons. It is not, however, the existence of the testing site itself that is the cause of the violation, but Russia’s use of it to develop nuclear-weapon missile technology.
Now that Kazakhstan has ratified the TPNW it should submit a statement making it clear that it does not authorise the testing of nuclear-capable missiles on its territory and outline the steps it has taken to communicate that position to Russia. Under international law, a state is required to act in good faith. The Kazakhstani government should remind Russia of Kazakhstan’s obligations under the TPNW and formally request that as soon as the TPNW enters into force Russia must cease testing of missiles intended to deliver nuclear warheads. If this does not occur, there will be a question of compliance to discuss among the states parties to the TPNW. Compliance issues arise in the implementation of almost every disarmament treaty. The TPNW has what has become a standard dispute settlement clause. Thus, Article 11(1) stipulates that when a dispute arises between two or more states parties relating to the interpretation or application of the treaty, the parties concerned must consult together with a view to the settlement of the dispute by negotiation or by other peaceful means of the parties’ choice. Under Article 11(2), the Meeting of States Parties may contribute to the settlement of the dispute. This gives the opportunity to resolve the issue peacefully and to every state party’s satisfaction.
More problematic are treaties such as the NPT, which has no dispute settlement clause or mechanism, and where there are serious compliance and interpretation concerns. (These include transfer of nuclear weapons between the United Kingdom and the United States and the US policy to transfer nuclear weapons on bases in Europe to use by non-nuclear weapon states in the event of major armed conflict.) In the 1992 Chemical Weapons Convention (CWC), which does have dispute settlement provisions, states parties have had to address use of chemical weapons in Syria since it became a state party, as well as use by Russian agents of a toxic chemical in the United Kingdom.
 C. Murray et al., The Law and Practice of International Trade, 12th Edn, Sweet & Maxwell, 2012, §28-009.
Article 1(1)(e): The Prohibition on Encouraging or Inducing Prohibited Activities
Under Article 1(1(e) of the TPNW, states party also undertake never under any circumstances to encourage or induce, “in any way, anyone to engage in any activity prohibited toa state party” under the Treaty. Encouragement in the context of the TPNW means persuading or seeking to persuade any other state or any legal or natural person to carry out a violation or continue an ongoing violation of any of the Article 1 prohibitions. Encouragement could take the form of verbal, written, material, or institutional support , both from governments as a whole (such as by adoption of a particular policy) and from senior government or military officials. Where such support has been given, the encouragement is understood to be ongoing until the point at which it is clearly withdrawn.
Inducing a prohibited activity means offering someone something in exchange for the performance of that activity. Thus, inducing will always involve encouragement.
The prohibition on encouraging illegal activities is the provision of the TPNW which is most frequently contravened. Thirty-four states were found to currently encourage the continued possession and potential use of nuclear weapons.
Endorsement of Nuclear-Weapons Doctrines, Policies and Statements
The TPNW does not preclude participation in security alliances or joint military operations with nuclear-armed states as long as this does not involve assistance, encouragement, or inducement of prohibited activities. While the TPNW does not contain an express licence to engage in cooperation with states not party to the Treaty, along the lines of the 2008 Convention on Cluster Munitions, there is nothing in the TPNW that suggests that such cooperation would be unlawful per se. The 1997 Anti-Personnel Mine Ban Convention, the 1971 Biological Weapons Convention, the 1992 Chemical Weapons Convention, and various protocols to the 1980 Convention on Certain Conventional Weapons similarly do not contain any such express formulations and have not been interpreted by their parties as proscribing participation in alliances with states that do not observe those agreements.
The main reason for concluding that the 34 states encourage activities prohibited by the TPNW is that they all subscribe to doctrines, policies, and/or statements that endorse one or more allies’ retention and potential use of nuclear weapons. The largest group of encouraging states are the 29 member states of NATO. NATO’s foundational document, the North Atlantic Treaty, does not mention nuclear weapons, but a number of the Alliance’s strategy documents do.
Combining alliance membership and adherence to the TPNW is entirely feasible. For example, NATO member states may adhere to the TPNW and remain within the Alliance as long as they explicitly distance themselves from specific statements or formulations in Alliance documents, particularly the Strategic Concept,142 which can be understood as an encouragement of the retention of nuclear weapons and their possible use.
It could be argued that a NATO member may, without having to explicitly “override” previous endorsement of extended nuclear deterrence, become compliant with the TPNW through the very acts of signing and ratifying the Treaty. However, having adhered to the TPNW, such a state would certainly be obliged to refrain from endorsing future Alliance language supporting the retention and potential use of nuclear weapons. This could be done either by adjusting the current language or by the state clearly rejecting possession or use of nuclear weapons on its behalf, for instance through “footnotes”, an interpretive or declaratory statement, or other unequivocal means of signalling disagreement. NATO members are not obliged to endorse every line of Alliance language. Indeed, there is a tradition of member states “footnoting” or otherwise distancing themselves from specific statements in Alliance documents.
Beyond NATO, three states engaged in bilateral defence arrangements with the United States have expressed public support for extended nuclear deterrence: Australia, Japan, and South Korea. Finally, Belarus, which is allied to Russia through the CSTO and the Union State, has expressed public support for nuclear deterrence and is therefore not in compliance with the TPNW’s prohibition on encouragement and inducement. Armenia, the last CSTO member, has not explicitly endorsed the potential use of nuclear weapons on its behalf. Armenia would, though, need to actively distance itself from nuclear deterrence in order to be considered compliant with Article 1(1)(e).
Conventional Participation in Nuclear Strike Exercises
Although military preparations to use nuclear weapons are not explicitly outlawed by the TPNW, participating in exercises that involve the simulated use of nuclear weapons is a violation of Article 1(1)(e) of the Treaty. This is the position, for example, of the International Committee of the Red Cross (ICRC). The ICRC affirms that where conduct contributes significantly to a prohibited activity (or renders it more attractive), and where there is knowledge that the conduct would, in the ordinary course of events, result in assisting, encouraging, or inducing a prohibited activity, training with others specifically for the use of nuclear weapons would be unlawful for any state party to the TPNW.
Participation by non-nuclear-armed states in nuclear strike exercises amounts to encouragement to possess nuclear weapons. In October 2017, for instance, conventional aircraft from Czechia and Poland participated in the nuclear exercise known as Steadfast Noon as part of their SNOWCAT (Support of Nuclear Operations with Conventional Air Tactics) role in NATO.146 Of course, during a conflict, assisting nuclear bombing raids, such as through the provision of conventional air support, would clearly constitute unlawful assistance to use nuclear weapons.
Article 1(1)(f): The Prohibition on Seeking or Receiving Assistance to Engage in Prohibited Activities
Under Article 1(1)(f) of the TPNW, states parties undertake never under any circumstances to “[s]eek or receive assistance, in any way, from anyone to engage in any activity prohibited to a state party” under the Treaty. This precludes any state party from asking any other state or any legal or natural person to help it to develop, possess, stockpile, test, produce, use, transfer, or receive nuclear weapons or other nuclear explosive devices.
In contrast to Article 1(1)(e) of the TPNW, which prohibits states from assisting prohibited acts by others, Article 1(1) prohibits states from seeking or receiving assistance to violate the Treaty themselves. A similar prohibition, imposed only on non-nuclear-weapon states, is contained in Article II of the NPT, though it only applies to manufacture: the undertaking is “not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices”.
Most of the nuclear-armed states in the past received some form of assistance to develop their nuclear weapons. More recently, North Korea’s advances in ICBM technology also appear to have been fuelled by outside sources. Some have suggested that North Korea either stole information or received assistance to copy Ukrainian (ex-Soviet) missiles, but the reports have not been confirmed.
France and the United States continue to receive assistance to develop their nuclear arsenals from multinational companies. In the case of France, this concerns the Airbus Group (legally incorporated in the Netherlands) and specifically its subsidiary Airbus Defence and Space (headquartered in Germany).
The United Kingdom appears to be seeking more or less continuous assistance from the United States to maintain its nuclear capability. The United Kingdom also receives continuous assistance with stockpile stewardship from France and vice versa. The United States, for its part, receives assistance from Belgium, Germany, Italy, the Netherlands, and Turkey to stockpile and deploy nuclear weapons in Europe. The United States also receives support for the development of nuclear weapons by the Italian company Leonardo. Further, the US missile-testing programme is indirectly assisted by the Marshall Islands. Russia, for its part, receives indirect assistance to test and develop nuclear ICBMs and anti-ballistic missiles from Kazakhstan. Russia also receives assistance to develop nuclear weapons by the Belarusian company Minsk Automotive Factory.
Article 1(1)(g): The Prohibition on Allowing Stationing, Installation, or Deployment of Nuclear Weapons or Other Nuclear Explosive Devices
Article 1(1)(g) of the TPNW outlaws a particular form of assistance or encouragement of prohibited action: allowing any stationing, installation, or deployment of any nuclear weapons or other nuclear explosive devices in a state party’s territory or at any other place under its jurisdiction or control. The TPNW’s prohibition against such hosting of nuclear weapons applies at all times, including during escalating tension or armed conflict. There is no corresponding prohibition in the NPT.
The concept of jurisdiction refers primarily to a state’s sovereign territory, while control extends to areas that the state party occupies or otherwise controls extraterritorially. This is irrespective of the legality of this control under international law.
Deployment is the broadest of the three types of prohibited conduct. A violation would not require any prolonged duration, agreement, or infrastructure. Thus, although transit of nuclear weapons is not explicitly prohibited by the TPNW, if movement into the sovereign territory of a state party is not swiftly followed by exit, this might amount to prohibited deployment.
All parties to nuclear-weapon-free-zone treaties have committed not to allow the stationing of nuclear weapons on their territories. Certain states that are not members of such zones have made similar commitments not to host nuclear weapons, with some limiting their commitment only to times of peace.
The United States is the only state currently known to station nuclear weapons on the territory of another state. As of 1 October 2019, five states were hosting US nuclear bombs (type B-61): Belgium, Germany, Italy, the Netherlands, and Turkey.