With the nuclear threat is on the rise, I was a bit surprised last week when I heard that the International Campaign to Abolish Nuclear Weapons (ICAN) had won the 2017 Nobel Peace Prize. It seemed out of step with today’s reality.
But as I reflected more and learned the reasoning behind the decision, the Nobel Committee’s choice grew on me. ICAN had achieved a great victory this year – a victory not so much for them, but for the future everyone on our planet, even as it is a victory that will take many years to turn from a legal and symbolic achievement to one with real world effect.
That victory was a treaty to ban nuclear weapons, or more specifically, to prohibit the development, production, acquisition, and production, the use or threat of use, and the transfer of nuclear weapons, or stationing such weapons on the state’s territory. Already more than 50 states have signed the Treaty on the Prohibition of Nuclear Weapons, which only opened for signature last month, and several of these also having ratified it. The treaty goes into effect once 50 UN member states have ratified it. None of the nuclear-armed states supports the treaty, and they did not participate in negotiating it.
Recognizing the opposition of nuclear-armed states, Beatrice Fihn, ICAN’s Executive Director, pointed to the power of international norms. She stated, “other prohibitions on weapons have shown… how international law and treaties and norms do impact behavior even on states that do not sign the treaty. We’ve seen it from biological and chemical weapons, land mines, cluster munitions. As soon as there is a prohibition in place, the dynamics on this issue changes.” [at 4:12, audio available through approximately Nov. 4, 2017]
She is right. While treaty norms do not invariably take hold – such as the 1928 Kellogg-Briand Pact renouncing war – most often they do. Consider the United States and the Land Mine Treaty (1997) that Beatrice Fihn referred to, banning land mines. While the United States never signed the treaty, in September 2014, the U.S. State Department announced that the U.S. government was “aligning [its] anti-personnel landmine…policy outside the Korean Peninsula with the key requirements” of the Land Mine Treaty.
Or consider the Framework Convention on Tobacco Control (FCTC). Again, the United States is not among the states party to the treaty, as 180 states and the European Union are. But consider this: one provision of the FCTC requires that tobacco product packages have warnings that cover at least 30% of the package, while states are encouraged to require warnings to cover 50% or more of the package. The U.S. Food and Drug Administration requires that cigarette warning labels cover the top 50% of the front and rear of cigarette packages, while a warning label on the addictiveness of nicotine must cover at least 30% of the display areas of packaging for other tobacco products, with a similar requirements for cigar packages. The influence of the treaty seems clear.
The power of FCTC norms has considerable significance even for states that are parties to the FCTC and legally required to follow its mandates. For with the treaty’s weak enforcement mechanisms, it may be the normative power of the treaty that is most powerful. Since the FCTC came into force, more than 50 countries have promulgated comprehensive smoking-free legislation, more than 115 now require pictorial warning labels covering at least 30% of tobacco packaging, and at least 38 countries have comprehensive tobacco advertising and sponsorship bans.
Meanwhile, consider the influence of international human rights law, a more complex field, yet again the power of treaty norms is evident, with human rights now a ubiquitous feature of national constitutions, and setting standards not only for governments but also for businesses and other institutions. While human rights violations of all sorts continue to plague our planet, almost everywhere too people are asserting their rights. While national constitutions and law often featured rights even before the Universal Declaration of Human Rights and subsequent treaties, international law has particularly spurred greater national legal recognition and action for economic, social, and cultural rights, and for the rights of specific populations, such as people with disabilities.
The importance of international legal norms has special resonance for those of us working to achieve a Framework Convention on Global Health, a treaty that would create powerful norms based on the right to health and aimed at health equity, in such areas as accountability, participation, financing, and non-discrimination and substantive equality. The treaty to prohibit nuclear weapons demonstrates that ambitious treaties are still within reach. And whereas the most significant benefits of that treaty require action by the nine nuclear powers, in the case of the areas that the Framework Convention on Global Health would address, every country has the potential to do better.
So in selecting ICAN for the peace prize, the Nobel Committee chose well. We can only hope that the norms of the Treaty on the Prohibition of Nuclear Weapons take hold around the world before we witness the unthinkable.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.