Using Collectivity to Ban Nuclear Weapons: An Analysis of the Protection of Humanity by the TPNW

[Vanessa Sant’Anna Bonifacio Tavares is a PhD candidate in Interdisciplinary International Studies (IIS) at the Vienna School of International Studies. The views expressed herein are those of the author and do not necessarily reflect any official position.]

In about 90 days, the UN Treaty on the Prohibition of Nuclear Weapons (TPNW) shall enter into force, proscribing nuclear weapons use, threat of use, testing, development, production, possession, transfer, and stationing. In the Legality of the Threat or Use of Nuclear Weapons (1996), the International Court of Justice (ICJ) concluded that the threat or use of nuclear weapons would be generally contrary to international law, but did not construe a categorical position on the lawfulness of threatening to use or using nuclear weapons in extreme situations of self-defence. Also, conventional instruments have foreseen the destruction of other types of weapons of mass destruction, like biological and chemical, but not nuclear warheads. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was based on a bargain -that states possessing nuclear weapons would negotiate disarmament while all others would refrain from acquiring them-, but critics claim that it has lacked substantive progress.

The TPNW is, thus, the first legally binding agreement to entirely outlaw this category of weapons of mass destruction. It contains 23 preambular paragraphs, in which the parties articulate and promote collective concerns related to the human and environmental consequences that would result from any use of those warheads. The third preambular paragraph draws particular attention to the humanitarian consequences arising from possession of nuclear weapons, whose risks concern the security of all humanity, and which imposes shared responsibilities upon all States. A similar language is found in the 2014 Humanitarian Pledge and in the UN General Assembly Resolution 70/48, which equally assert that the central concern is no longer with states properly, but rather with humankind as whole.

Because the TPNW and the prohibition of nuclear weapons are so intimately linked to a unique and existential threat to humanity, this article looks into how the concern with collective entities is addressed in international law. It draws upon the general courses at the Hague Academy of Abi-Saab, Simma and Cançado Trindade, to show that the protection of the common interests is subject to different discourses in the discipline, all of which converge into the idea that there is more at stake in international law than the interests or the states and individuals alone. As such, the article focuses, predominantly, on the strength of the accounts based on the rights of humankind and on the recognition of its conditions as a legal subject. As international law continues to struggle with the fundamental categorisations of the notion of humanity, this article hopefully draws attention to an otherwise underdeveloped concept of other rights theorists.

The Necessary Existence of Collective Rights

Three main authors have made the case that certain rights are collective rather than individual. Abi-Saab was one of the first to suggest that there were rights that could be charged to the entirety of the international community (droit collectif). His ideas departed from the fact that the obstacles to economic development could not necessarily be attributed to the harmful action of a particular state, but to an unbalanced international economic order. Therefore, he called upon the attribution to the same international community of the function of guarding such superior values (droit de regard) and ensuring that collective concerns were properly implemented at the national level.

Abi-Saab made for an interest de lege ferenda argument that, to supranational values correspond collective rights. He also proposed a ‘value-added test’ to explain the relevance of group rights. As he stated, if a collective right, like the one to development, were to be the sum, or the synthesis, of all other individual rights, it would have no value-added, neither in the normative sense nor as an explanatory theory. However, in the form of a group rights, it provided for a second level of protection to the correlated individuals rights (droit de l’homme au second degré), which was not unrelated to individual interests, but rather facilitated the fulfilment of the interests of diverse members at the same time.

Drawing an analogy with the TPNW, it is possible to argue that an absolute ban, predicated on the dictates of public conscience, represents a similar second layer of guarantees. It is distinct from an arms control arrangement and addresses matters that do not necessarily relate to an interstate war. It deviates from the logic of deterrence, for which it is the individual capacity of a state to convince its adversaries that the cost of an attack would be greater than the potential gain that brings stability. Moreover, it concerns threats not covered by the reduction and control of arsenals, like the detonation of an existing warhead by accident, design or miscalculation (see: Jervis, 1989; Ned Lebow, 1988; and Mahaffey, 2014).

Judge Simma also outlined the existence of ‘community interests’, based on certain fundamental values that were not to be left to the free disposition of states individually. These were interests emanating from multilateral agreements, whose rights and obligations could not simply be split up into a number of bilateral relationships, either because they formed an indivisible whole to the performance of the effects of the instrument, like the 1963 Partial Nuclear Test Ban Treaty, or because the obligations did not concern the interstate relations, but rather obliged the contracting states to adopt certain conducts within their jurisdiction, like the protection of human rights. Furthermore, such ‘community interests’ should rather be entrusted to independent third parties, like the International Seabed Authority, established by the 1982 UN Convention on the Law of the Sea, which is probably the main model of non-sovereign administration of territorial spaces and natural resources.

The acknowledgement that there are some public goods (or ‘community interests’) is deeply embedded in legal institutions like jus cogens and erga omnes norms. They have steadily given effect to such communal values through some paradigmatic cases, like the Barcelona Traction Case, in which the International Court of Justice, albeit in a rather surprising context of a discussion on the diplomatic protection of shareholders, resorted to an obiter dictum on bilateralism v. community interest in principle.

Simma’s argument also yields the hypothesis that, if certain community interests exist and are legally protected, then certain collective rights are in place, due to the intrinsic value of the collective goods they protect. Such conclusion is obviously important to explain the collective considerations outlined in the preamble of the TPNW, in particular how the concerns with the security of all humanity necessarily imply a reactive stance.In asserting the existence of international collective rights, it brings an apparently simple and yet great innovation of assurance that in the international arena states are also under an obligation to cooperate to reduce the risks posed by nuclear weapons. The very treaty outlines a few of those measures, which should be progressively addressed in the meeting of states parties or review conferences. They include the forsaking of certain capabilities; the avoidance of further testing; the elimination of direct and indirect transfers of nuclear weapons or other nuclear explosive devices; and the halting of assistance in prohibited activities.

Who is Entitled to Collective Rights?

To say that a collective interest is enough to ground collective duties in the international arena is one thing, but which collectivities can claim such rights? Focusing on the expansion of international legal personality, Cançado Trindade sheds light on this matter by proposing the recognition of a right to the collective representation of humanity in itself. In his view, the humankind is entitled with legal personality, like a subject of modern jus gentium, representative of both present and future generations, or, as put by the ILC Special Rapporteur, Doudou Thiam, to the human race as a whole.

Trindade does not dissociate himself from the domain of jus cogens, but rather distinguishes a special set of non-individualisable interests, which presuppose certain societal conditions, such as the common heritage of mankind, crimes against humanity, and the dignity of human beings. Similar ideas have been outlined by Teitel, in Humanity’s Law, who proposes that the protection of humanity redefines global allegiances and identities. In Eunomia: new order for a new world, Allott also regarded a humanity-centred international law as a means to reconceptualise the international ‘unsociety’ into a system organised according to the needs of the human beings.

References to the collective understanding of protection of humanity have also been included in the decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadić case (1997), in which was ruled that crimes against humanity not only violate the rights of the victims, but also those of all humanity. Similarly, the International Criminal Tribunal for Rwanda (ICTR) endorsed the ICTY’s decision that, in the case of genocide, the victims are not only the individuals but humanity itself (Kambanda, 1998). In addition, the Inter-American Court of Human Rights (IACtHR), in the Advisory Opinion no. 18, on the Legal Status of Undocumented Migrants (2003), referred to the inalienability of the rights inherent to the human person, and in the case of the Indigenous People of Xucuru and its Members (2018), rendered protection towards the collective property of the indigenous tribe, and individually to its members.

Here, one may raise an objection that the legal capacity to act on behalf of humankind remains somewhat limited, hampered by unarticulated ideas of collective interests, such as we have been exploring. How could the post argue, then, that collective rights are necessary if the collectivity in itself remains clearly contingent? This feature, however, is the actual strength of this account, because it simply leaves no ground for anyone to take all de facto collective concerns at their face value. The arguments outlined remain valid even if the concern is genuinely collective or less so; if they address higher aspirational values or are abused by powerful players precisely to undermine the international order. That is because these ideas are no less dependent upon the fact that, in linking catastrophic humanitarian consequences to the existence of nuclear weapons and in associating the reduction of human suffering to the elimination of the stockpiles, the TPNW made collective interests meaningful and viable.