The prohibition on assistance, encouragement, or inducement

Each State Party undertakes never under any circumstances to: ‘Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty.’

• Under this provision, a state party is precluded from assisting any other state, alliance, or international organisation, company, non-state actor, or individual to develop, test, produce, manufacture, otherwise acquire, possess, stockpile, transfer, deploy, receive, threaten to use, or use nuclear weapons or other nuclear explosive devices.
• States parties to the TPNW are allowed to participate in security alliances and military cooperation arrangements with nuclear-armed states—and may continue to carry out all planning, operations, exercises, and other military activities with them—so long as this does not involve nuclear weapons. Participation in nuclear-weapon-related military activities, however, would need to be discontinued.
• Other disarmament treaties contain a similarly worded prohibition, and there is an established understanding in international law of the concepts of assistance, encouragement, and inducement.
• Conduct by omission as well as act is covered by the prohibition. This is so, irrespective of the inclusion of the words ‘in any way’.
• The effects of violating this prohibition are identical, regardless of which alternative has been violated. If an act is clearly assistance, it is not necessary to determine whether the act also constitutes encouragement, and vice versa.

ASSISTANCE

• In order for conduct to constitute assistance, there must be a causal link between the conduct and a prohibited activity. In addition, the conduct must contribute significantly to this activity, although it does not need to be essential to its occurrence. Insignificant contributions would not constitute prohibited assistance. Inherent in the requirement that the contribution is significant is that the prohibited activity which is assisted must be ongoing or temporally proximate. This means that while the prohibited activity need not have happened or be ongoing, it cannot be only a theoretical possibility.
• The state must have acted with the knowledge that the conduct would, in the ordinary course of events, assist a prohibited activity. This effectively excludes temporally remote or incidental contributions.
• 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-weapons programme).

ENCOURAGEMENT

• ‘Encouraging’ 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 prohibited activity or continue an ongoing violation of any of the other Article 1 prohibitions.
• The prohibited activity being encouraged does not need to materialise as it is the act of encouragement that is prohibited and not the result.
• Encouragement could take the form of verbal, written, material, or institutional support, whether from a government as such (for instance, through the adoption of a particular policy or document) or from pertinent 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.

INDUCEMENT

• Inducing a prohibited activity means offering someone something in exchange for the performance of that activity. Thus, inducing will always involve encouragement.

• Non-nuclear-armed states may adhere to the TPNW and remain within an alliance with one or more nuclear-armed states as long as they explicitly distance themselves from specific statements or formulations in alliance documents that amount to encouragement of use or possession of nuclear arms.
• It could be argued that, for example, a NATO member may, without having to explicitly ‘override’ previous endorsement of extended nuclear deterrence, become compliant with the TPNW through the acts of signing and ratifying the Treaty. However, having adhered to the TPNW, such a state would be obliged to refrain from endorsing future NATO 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 means of signalling disagreement with any endorsement of the potential use or possession of nuclear weapons.
• Such footnotes or statements could be simple and for instance phrased as follows: ‘State X does not support the possession or use of nuclear weapons or other nuclear explosive devices on its behalf and will not assist the development, possession, acquisition, or use of such weapons or devices in any way.’
  
• 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.
  

• A company that develops, produces, or maintains key components (such as a ballistic missile) for a nuclear weapon or other nuclear explosive device, or which maintains nuclear weapons, would thereby engage the international responsibility of the state in which it is operating. Such a state party would be responsible for prohibited assistance under the TPNW (assistance to development, production, or possession, depending on the acts the company was performing).
• Depending on the circumstances, a parent company can also be legally responsible for the acts of its subsidiaries. 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. Under international law, contravention of the provisions of a disarmament treaty or of customary disarmament law by a corporation would suffice to render the state or states responsible on whose territory that corporation committed the relevant act or acts.
• 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 company establishes a new body corporate, and is 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 or any involved divisions, departments, or production facilities would be responsible for the acts of the joint venture where those do not comply with an international treaty or customary law on disarmament.

• All investment in the nuclear-arms enterprise runs counter to the object and purpose of the TPNW — which is to ensure that nuclear weapons are never again used under any circumstances.
• The TPNW does not explicitly prohibit the financing of nuclear-weapon programmes. The ordinary purchase of shares in a company involved in the development, production, or maintenance of nuclear arsenals is therefore not per se an illegal act under the TPNW. The prohibition on assistance in Article (1)(e), however, renders unlawful any significant and especially any controlling shareholding in a company involved in the development, production, or maintenance of nuclear weapons.
• It is not possible to define as a matter of international law what constitutes a significant ownership share in terms of a fixed percentage of shares or votes that applies consistently across every state, as this varies from country to country and market to market, and differs based on the type of company. To determine if a specific shareholder has significant influence on the management of a company, it is necessary to assess the ownership profile of the relevant company and applicable national law.
• The prohibition on assistance also renders unlawful direct funding of any of the prohibited activities listed in other subparagraphs of Article 1(1). If, for instance, financing in the form of an earmarked loan or credit line is provided to a company for the development, production, or maintenance of nuclear weapons, this is unlawful assistance with the development, production, and possession of nuclear weapons.
• The prohibition on assistance encompasses not only state funding, but also private banks and other financial institutions as well as individuals.
• Also the Convention on Cluster Munitions (CCM) does not contain an explicit prohibition on financing, but that Treaty’s prohibition on assistance is widely considered to prohibit financing.
• Cuba issued a declaration upon joining the TPNW, stating that ‘The financing of any activity prohibited to a State Party under this Treaty is also a prohibited activity according to the provisions of Article 1(e).’ (See: https://bit.ly/3eB7UMm.